UK Law and Practice Contributed by: Charles Brasted, Julia Marlow, Andrew Eaton and Fraser Eccles, Hogan Lovells International LLP
to any other relief granted, the court is satisfied that the award is necessary to afford “just satis- faction” , applying the principles concerning the award of compensation under Article 41 of the ECHR. 13.2 Invalidating Legislation As explained at 3.1 Challenging Primary Legis- lation , it is not possible for the courts to strike down primary legislation. By contrast, where secondary legislation is found to be unlawful (see 3.2 Challenging Secondary Legislation ), the courts may quash it, rendering it void and of no legal effect. Quashing orders can be conditional, suspended or prospective only (Section 29A SCA 1981). The court may also sever the secondary legislation, quashing only the unlawful part and leaving the remainder in force (Director of Public Prosecutions v Hutch - inson[1990] 2 AC 783). All remedies in judicial review are discretion - ary, meaning that the court might decide that, despite being unlawful, the secondary legisla - tion should be upheld – for example, to maintain legal certainty. 13.3 Mandating Government Action Through Court Orders Where government action is found to be unlaw - ful, the court may issue a mandatory order compelling the defendant to perform a function or a duty, or to perform it in a certain way. If the defendant fails to comply, it will be in con - tempt of court. However, as explained at 13.2 Invalidating Legislation , all remedies in judicial review are discretionary, and so the court might elect not to issue such an order – for example, due to the impact of a mandatory order on the defendant’s decision-making and administration
(R (Imam) v London Borough of Croydon [2023] UKSC 45). 13.4 Next Steps Where a Decision Is Found Unlawful Where a governmental decision is found to be unlawful, the court may issue a quashing order (see 13.2 Invalidating Legislation ), a mandatory order (see 13.3 Mandating Government Action Through Court Orders ), a prohibiting order, a declaration or, in some circumstances, dam - ages (see 13.1 Damages ). The most common relief sought is an order of the court quashing the decision or action under challenge and remitting it to the defendant for reconsideration. A prohibiting order prohibits the defendant from doing something or from acting in a certain way. Prohibiting orders are less common as the court’s ruling that the decision or action under challenge is unlawful is usually sufficient. A declaration is an authoritative statement by the court and of general application as to what the law is. Declarations may only be granted where it is just and convenient in all the circumstances (Section 31(2) SCA 1981) and are generally only considered where other remedies are inappro - priate. They are usually sought to: • declare a particular decision or action unlaw - ful; • determine the scope of public law powers and duties; or • declare, in accordance with Section 4 HRA 1998, provisions of primary legislation incom - patible with human rights protected by the ECHR.
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