CONCLUSION

[4.45] This chapter has introduced the grounds for judicial review. Five points can be made by way of summary:

i. The grounds for review, which overlap with one another, are developed in the light of the common law and the demands of EU law and the ECHR.

ii. The common law places a particular emphasis on the �rule of law’ and the need to prevent the �abuse of power’ (see [4.04]-[4.09]). Developments in judicial review that relate to decisions taken within the framework of statute are thus underscored by an enhanced ultra vires doctrine that no longer distinguishes between errors of law that go to the jurisdiction of the decision-maker and those that are made within jurisdiction. Any error of law is, subject to only very few exceptions, open to chal­lenge (see [4.30]-[4.35]).

iii. The grounds for review are, at the same time, context-sensitive. While the reach of the grounds has expanded, the courts will exhibit self-restraint depending on the nature of the dispute before them. Paradigm examples of cases in which restraint is considered appropriate are �political’ disputes and those that raise national security considerations (see [4.14]-[4.21]).

iv. The courts will also exhibit more or less restraint depending on the degree of discre­tion that a decision-maker has under statute. Although the extent of discretion is largely a function of judicial interpretation of the statute, the existence of a statu­tory �power’ will typically be taken to indicate that a decision-maker should be free lawfully to choose between different outcomes. Where a statute in turn imposes a �duty’, this will point more towards an obligation on the decision-maker to act in a particular way. The courts do, however, also accept that some statutory duties can import an element of discretion and they may for that reason be reluctant to inter­fere with decisions, acts, or failures to act (see [4.22]-[4.28]).

v. Judicial review is concerned with the legality of decision-making processes and outcomes, not with their merits. While the courts will review decisions or other measures for errors of law, they have historically been more reluctant to review for error of fact. There are, however, some important exceptions to this rule, and these can be linked to a further strengthening of the �rule of law’. The courts will thus review on the basis of �precedent fact’, �relevancy’, �no evidence’, and �error of material fact’. Review for �error of material fact’ potentially also has a particular significance in respect of ensuring common law compliance with the demands of Article 6 ECHR, where that Article is engaged (see [4.36]-[4.44]).