Q&As

Illegality in a judicial review context, what is it? When is it an actionable ground of challenge and what must be established for a challenge to succeed?

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Produced in partnership with Jamas Hodivala of Matrix Chambers
Published on LexisPSL on 12/10/2018

The following Public Law Q&A Produced in partnership with Jamas Hodivala of Matrix Chambers provides comprehensive and up to date legal information covering:

  • Illegality in a judicial review context, what is it? When is it an actionable ground of challenge and what must be established for a challenge to succeed?
  • Illegality in a judicial review context
  • When is it an actionable ground of challenge?
  • Jurisdiction
  • Functus officio
  • Carltona principle
  • Dominant purpose
  • Existence of a factual precondition
  • Human rights

Illegality in a judicial review context

A public body is not permitted to act beyond the scope of its powers and duties, which may be defined by reference to applicable legislation, whether domestic or European (including EU law and the European Convention on Human Rights). In other words, a public body is not entitled to act without jurisdiction, or fail to act when it is required to do so; such actions are considered to be illegal in a judicial review context.

An anachronistic distinction between jurisdictional and non-jurisdictional errors of law, which restricted the availability of judicial review in certain circumstances, was abolished by the House of Lords in Anisminic Ltd v Foreign Compensation Commission.

In Council of the Civil Service Unions v Minister for the Civil Service, at para [410] Lord Diplock stated:

‘By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.’

When is it an actionable ground of challenge?

It is impossible to detail all of the circumstances in which a decision will be ‘illegal’ (often alternatively referred to as ‘unlawful’) within the scope of this Q&A, however, some are:

Jurisdiction

A public body acts illegally when it wrongly concludes that it has power to act (R (Brittanic Asset Management Ltd) v Pensions Ombudsman). Secondary legislation governing the decision may

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