UK Law and Practice Contributed by: Charles Brasted, Julia Marlow, Andrew Eaton and Fraser Eccles, Hogan Lovells International LLP
within one year of the date on which the act complained of took place (Section 7(5)(a) HRA 1998). 10.9 Proportionality Proportionality is not currently a free-standing ground of judicial review. However, it is the standard of review that the courts are required to apply when determining whether a decision under challenge is incompatible with human rights (as to the applicable test, see Bank Mellat v HM Treasury [2013] UKSC 39). The courts have refused to adopt proportional - ity as a free-standing ground of judicial review (see, eg, R (Keyu) v Secretary of State for For - eign and Commonwealth Affairs [2015] UKSC 69). However, the courts have also expressed doubt as to whether doing so would result in any difference in outcome in a given case, due to the existing “flexible approach” to irrationality review adopted by the courts (see 10.4 Factual Errors ) – for example, based on of the importance of the interests at stake. 10.10Additional Grounds Where the public body has made a clear, unam - biguous and unqualified representation that it will act in a certain way or adopt a particular pro - cess in respect of a decision, or where its regular conduct amounts to such a representation, this might give rise to an expectation on the part of others as to the public body’s future conduct. Resiling from such representations in a way that frustrates the legitimate expectation of a claim - ant may constitute a ground of judicial review where the court considers that to do so amounts to an abuse of power (R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] UKHL 61).
As public bodies are required not to fetter their discretion and are generally permitted to depart from previous policies or processes where appropriate, this ground of judicial review suc - ceeds only rarely in practice, usually where the claimant can establish particular circumstances that justify the courts enforcing their expecta - tion. Case law distinguishes between “proce- dural” and “substantive” legitimate expectations, the former tending to be more readily enforce - able than the latter. While proof that the claim - ant relied on and/or suffered detriment due to the frustration of the legitimate expectation is not required, it may be relevant to the court’s assessment. 10.11Exempt Decisions Certain powers exercised by government derive from the royal prerogative of the Crown. These are the residual powers left over from when the monarch was directly involved in government and are now exercised by government minis - ters on behalf of the Crown. They include mak - ing treaties, declaring war and other matters of foreign affairs and domestic policy. The courts can review whether a prerogative power exists and, if it does, its extent. For exam - ple, it is unlawful for a government minister to act using a prerogative power where a statutory power has been provided to achieve the same purpose (R v Secretary of State for the Home Department, ex parte Fire Brigades Union[1995] 2 All ER 244). However, where the exercise of a prerogative power has been exercised within its limits, whether it is susceptible to judicial review depends on the nature and subject matter of the prerogative power being exercised (R (Miller) v The Prime Minister [2019] UKSC 41).
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