Judicial Review

Judicial Review proceedings in Scotland

In judicial review proceedings, a court reviews the lawfulness of a decision or action made by a public body.  In Scotland, judicial reviews are heard in the Court of Session. 

The Court, when reviewing a decision, will examine the way in which the public body has made its decision – it will consider, for example,  whether the decision was wrong in law, whether the person making the decision had the power to do so and whether the correct process was followed.  The Court will not consider the merits, or substance, of a decision or substitute it with an alternative decision.  It may, however, overturn the decision and order the public body to make the decision again.

Judicial review is only available when there is no alternative remedy available.  Alternative remedies may include statutory routes of review or appeal, administrative complaints procedures or ombudsmen.  Individuals seeking judicial review of a public body’s decision will be expected to have exhausted the other options available to them before doing so.

What decisions are reviewable?

A decision or failure to take a decision affecting persons by someone empowered by public law and in respect of which there is no other available remedy.

Will the Court look at the merits?

The Court cannot substitute its own decision, but can quash a decision and send it back to be considered again - except where it is an ECHR case, when the Court can re-examine the merits (see Huang v The Secretary of State for the Home Department [2007] UKHL 11; 2007 2 AC 167 and Nasseri [2009] UKHL 23)

What will the Court be looking at?

Was the decision wrong in law? Did the person making the decision have power to do so? Did he/she exercise those powers correctly? Did he/she take all the relevant information into account?

What is an example of procedural impropriety?

A breach of duty to act fairly, failure to consult, being or appearing to be biased, failing to take into account legitimate expectations.

What options are available to the Court?

It can quash decisions, award damages, make a declaration and make interim orders, including interim interdict (an order preventing an action until the Court has made its judgment).  The Court can of course also refuse the application for judicial review.

What happens in judicial review proceedings?

Judicial reviews are made by way of a Petition to the Court of Session in Edinburgh.  All judicial review actions go to a judge for First Orders to be granted.  The first order allows the petitioner (the person challenging the decision) to serve the petition on the respondent (the decision-maker).  It is at this stage that the petitioner can also seek interim orders, for example to prevent the demolition of a building until the Court has an opportunity to consider what should happen to it at a full hearing of the case.  

If interim orders are sought, a caveat may be triggered.  Caveats are a form of early warning system which respondents often put in place in the Court of Session in order to alert them in the event that a petitioner is seeking an award of interim orders against them.  The respondent (the can then arrange to make representations to the judge before first orders are granted.

Once first orders have been granted, the case will be assigned a date for a First Hearing. If the matter is urgent, this can be arranged at short notice.  More often, though, a hearing may be fixed for some months ahead.  The respondent can then arrange for an advocate to be appointed to represent their interests in the case.

The first hearing can be either a short one, to decide on future procedure, or it can be a lengthier one, where detailed legal arguments are made on behalf of parties. It is also possible to have a second hearing, at which evidence can be led, either by affidavit (sworn statement), or in person.  The judge may either give his or her opinion orally when he or she is finished hearing the case, or he or she may choose to think about it for a while (makes avizandum) before issuing his or her decision. Opinions are published on the Scottish Courts website on the date of issue.