PLAIR Readings

C.M.G. Himsworth & C.M. O’Neill (2015) Scotland’s Constitution Law and Practice (3rd Ed.)
(Bloomsbury): pp.420-439. Paragraphs 14.7-14.13
o unlike statutory appeals which are available only where UK/Scottish Parliament has made
specific provision in statute for them, judicial review is asserted as power of Court of Session
by the court itself
o courts’ role in supervision and control of public bodies has expanded though it has sought to
expand within a principled framework which allows growth but also explains limits to that
growth
o grounds for review
 illegality
 broad
 “the decision-maker must understand correctly the law that regulates his
decision-making power and must give effect to it”
 even when legislation allows public body “discretion”, courts have the right to
regulate the manner in which those powers may be exercised – they must be
used properly and not for improper purposes; the public body must take account
of relevant and not irrelevant considerations; and it must not act with malice or
bad faith
 body must not delegate their responsibilities to another body (apart from
exceptions) and they must not abdicate their responsibilities altogether by
refusing or failing to make any decision at all
 “error of law” falls within ‘illegality’ – concerns circumstances in which it is claimed
that in the exercise of administrative discretion by a public authority, or in
determination of disputes by an adjudicator such as a tribunal or arbiter, decision-
maker has failed to apply properly law governing decision-making process
o in Eba v Advocate General for Scotland lord hope emphasised again that
all errors of law are reviewable in England and Scotland and there is no
difference between grounds of review in England and Scotland; he said
this because originally England used to allow all errors of law to be
challenged via judicial review whereas Scotland distinguished between
intra vires errors of law which were permissible to make without decision-
maker being challenged and ultra vires errors which were impermissible
and gave rise to possibility of decision being struck down
 irrationality
 Wednesbury unreasonableness test: “if a decision on a competent matter is so
unreasonable that no reasonable authority could ever come to it” (Greene); “a
decision which is so outrageous in its defiance of logic or of accepted moral
standards that no sensible person who had applied his mind to the question to be
decided could have arrived at it” (Diplock)
 procedural impropriety
 Re HK (an infant) [1967] 2 QB 617; Errington v Wilson 1995 SC 550: “failure by
an administrative tribunal to observe procedural rules that are expressly laid
down in the legislative instrument by which its jurisdiction is conferred, even
where such failure does not involve any denial of natural justice” – bodies must
observe any relevant statutory procedural requirements as well as precepts of
“natural justice” (common law rules of fair process which have been developed by
the courts themselves)
 there are questions as to whether a failure to follow such a procedural
requirement should have the consequence that the action taken by the public
authority – which might but for the procedural failure be quite lawful – should be
treated as being wholly invalid or whether it may survive; sometimes legislation
will make express provision about what is to happen if procedural hurdles are not
 cleared but where it does not courts may categorise statutory procedural
requirements as either mandatory or directory
o mandatory: failure will result in nullity of public body’s act
o directory: failure will not automatically lead to that result
 however, seriousness of breach and impact of breach on persons affected by
public body’s action will influence attitude of courts (Mitchell v North Lanarkshire
Council 2007 SLT 765)
 natural justice precepts
o nemo iudex in sua causa – impartiality of decision-maker – shouldn’t have
any personal pecuniary interest in outcome of decision-making process
(Dimes v Grand Junction Canal Proprietors; Sellar v Higland Railway Co),
make decision directly involving someone with whom he has close
personal relationship (Moncrieff v Lord Moncrieff) or having direct impact
on company of which he is director (R v Bow Street Metropolitan
Stipendiary Magistrate, ex parte Pinochet Ugarte)
 “justice must not only be done but must manifestly be seen to be
done”
 Porter v Magill: decisions may be struck down where circumstances
are such that a “fair-minded and informed observer, having
considered the facts, would conclude that there was a real
possibility that the tribunal was biased”
o audi alteram partem – right to a hearing – party involved in
dispute/affected by administrative decision has right to put their case fully
and effectively to the court, tribunal or public body entrusted with decision-
making powers
 consideration has been given to whether person is entitled to
 legal representation (Abbas v Home Secretary)
 lead witnesses (R v Hull Board of Prison Visitors, ex parte St
Germain (No 2))
 test evidence of opponent whether by cross-examination or
otherwise(R v Hull Board of Prison Visitors, ex parte St
Germain (No 2); Errington v Wilson)
 appropriate notice of any case against him and access to
evidence which may be used by his opponent or by decision-
maker in forming view on merits of his case (Inland Revenue
Comrs v Barr; Moore v CLyde Pilotage Authority)
o R v Civil Service Appeal Board, ex parte Cunningham: rules that concern
when and to what extent a party is entited to be furnished with the reasons
for any decision which is made
o Art.6 ECHR concerns procedural fairness and breach of that article (or any
other of those incorporated by HRA 1998) now provide grounds for judicial
review (Anderson v Scottish Ministers)
o There must be a natural/judicial person who has the necessary standing to sue - Courts
Reform (Scotland) Act 2014 established statutory definition of locus standi
 Courts Reform (Scotland) Act 2014 s.89: applicant must “demonstrate a sufficient
interest in the subject matter of the application” for their application for judicial review to
proceed
 AXA General Insurance Ltd, Petitioners questioned Scottish requirement of someone
with title [legal relation giving petitioner some right that body is infringing/denying] and
interest [driving from petitioner’s pecuniary rights or status] in judicial review because
public authority can violate rule of law without infringing rights of an individual, i.e.
standing should rely on an interest-based approach rather than a rights-based one –
established that person only needs “interest” – “the type of interest which is
relevant…will depend upon the particular context”
o public interest intervention – court must be satisfied that a matter of public interest is at stake
and that applicant has relevant arguments to make and that the intervention will not “unduly
delay or otherwise prejudice the rights of the parties, including their potential liability for
expenses” for leave to be granted
 intervener’s submissions are normally to be made in writing though an oral hearing may
be held
o access to the courts cannot have been prohibited or curtailed by statute – though judicial
review is power asserted by the courts, its scope and availability are open to manipulation by
parliaments, e.g.
 there is provision for statutory remedy (i.e. appeal to court/tribunal) which may be used
by specified persons to challenge administrative act or decision, thereby excluding
residual option of judicial review (O’Neill v Scottish Joint Negotiating Committee for
Teaching Staff)
 parliament has explicitly excluded review – usually this occurs where statute has
deliberately provided an appeal but restricted access to the appeal to a specified period
and then excluded any form of legal challenge thereafter (Hamilton v Secretary of State
for Scotland)
 however, in Anisminic Ltd v Foreign Compensation Commission statutory attempt to
close off all challenges to “determinations” by Foreign Compensation Commission was
dismissed and court held that even such clear statutory rules didn’t exclude review of
determination which was demonstrably invalid through legal error of Commission
 courts’ wish and obligation to secure their powers of review against statutory
intervention is strengthened by terms of art.6 ECHR, especially since its incorporation
by HRA 1998 and SA 1998
 TCEA 2007 provided that Court of Session must in some cases and may in others
transfer petitions for judicial review to new Upper Tribunal and specifically to
Administrative Appeals Chamber to be heard there
 application must be transferred if all that is sought is exercise of supervisory
jurisdiction of Court of Session and if application is type specified by Act of
Sederunt made with consent of Lord Chancellor [application challenging
procedural decision/ruling of First-tier Tribunal
 application may be transferred if all that is sought is exercise of supervisory
jurisdiction, application relates to matters not devolved and it doesn’t all within
class specified in Act of Sederunt
 TCEA 2007 s.13(8) defines certain decisions of Upper Tribunal as “excluded decisions”
against which there is no statutory right of appeal; R(Cart) v Upper Tribunal determined
that absence of right of appeal against excluded decisions didn’t preclude altogether
application for judicial review though circumstances in which such review would be
available should be limited such a way as to balance need to avoid courts being
overburdened by applications for judicial review with importance of ensuring that
‘important’ errors of law can be corrected (by limiting grounds on which excluded
decision might be judicially reviewed to those which applied to ‘second appeals’ from the
Upper Tribunal to Inner House of Court of Session or to English Court of Appeal, i.e.
important point of principle/practice was raised or there was some other compelling
reason for case to be heard)/Eba v Advocate General for Scotland determined that
same approach should be taken in Scotland and said that “compelling reason” would be
decided by COurt of Session
 protective costs orders have been developed to provide an ‘insurance policy’ to litigant
so that they will not be required to meet other party’s expenses if their case fails
 persons aggrieved by decision of public authority are normally expected to exhaust all
statutory remedies that they may have before pursuing petition for judicial review (British
Railways Board v Glasgow Corporation)
o Courts Reform (Scotland) Act 2014 s.89 amends Court of Session Act 1988 by introducing new
provisions on time limits and on permission for applications for judicial review (Gill reforms)
  if there is good reason for delay in making application or where court is satisfied that
injustice would result if petition presented outwith time limit was not allowed to proceed,
court should have discretion to allow late petition to proceed – 3-month time limit was
introduced by CR(S)A 2014 s.89 introducing new s.27A into CSA 1988
 need to obtain permission or leave of court to raise petition for judicial review - Gill
review recommended introduction of leave/permission stage on grounds of pressure of
business placed on Court of Session by judicial review applications and assumption that
failure to appeal against refusal of permission was evidence that challenge had in any
event been without merit; thus, in England and Wales this meant that around 1/3 of all
applications for judicial review were resolved before permission stage; most cases that
proceeded to permission stage did not receive permission; in only small minority of
cases was there appeal against refusal of permission; thus, these procedures work well
in filtering out unmeritorious applications and prompting early concessions where claims
are well founded
 CSA 1988 27B-D: No proceedings may be taken in respect of an application to
supervisory jurisdiction of Court unless Court has granted permission for application to
proceed and Court may grant permission only if it is satisfied that applicant can
demonstrate sufficient interest in subject matter of application and application has real
prospect of success; for Upper Tribunal new provisions incorporate Eba requirements;
petitioner may also request oral hearing before different judge where permission has
been refused or has been granted only in part or subject to conditions; there is also
provision for appeal to Inner House against further refusal after oral hearing
o constitutional significance of judicial review: it enables and compels courts to determine
whether acts and decisions of public authorities are legally valid and thus whether they are/can
become enforceable
 protects individuals from unlawful activity by public authorities and upholds lawful acts of
those authorities as they implement powers conferred by statute, thereby implementing
will of parliament and upholding rule of law
 however, while judicial review reconfirms need for robust and independent judiciary
courts must be seen to confine themselves to deciding issues before them on legal and
not political grounds
 regardless, 2 features of judicial review can still make the courts’ task controversial
 problem of statutory interpretation and evaluation in light of loosely constructed
criteria like ‘fairness’ and ‘reasonableness’ of lawfulness of administrative action
o e.g. courts have adopted their own standards of procedural impropriety
[like natural justice precepts]; Wednesbury unreasonableness test
broadens scope of reviewable unreasonableness to include cases where
public bodies were claimed to have taken into account “irrelevant
considerations”, failed to take into account “relevant considerations” or
used their powers for “improper purpose”
 expanding grounds of judicial review – in GCHQ case, “proportionality” was
suggested but question is whether arbiter of this standard of proportionality
should be administrative bodies who should be politically accountable for
proportionality of their decisions or whether their judgment should be second-
guessed by courts
o obligation of uk courts to apply eu law already requires courts to use
proportionality tests so it would be logical to extend that use into non-EU
issues; similarly, need for courts to apply terms of ECHR involves
‘balancing’ of individual rights against public interest (which closely
resembles proportionality)
o but courts don’t have skills or resources to undertake balancing exercise
demanded by proportionality test (R v Secretary of State for the Home
Department, ex parte Brindi); and the obligation to balance rights doesn’t
carry with it competence to balance wider policy issues
o Kennedy v CHarity Commission: terminology of proportionality “directs
attention to factors such as suitability or appropriateness, necessity and
balance or imbalance of benefits and disadvantages. there seems no
reason why such factors should not be relevant in judicial review even
outside the scope of Convention and EU law”