In Scotland, the Court of Session has a supervisory power to consider administrative actions to make sure that legal powers have been used lawfully and properly. This is exercised through the process of judicial review.
The availability of any other statutory remedy
Before bringing a petition for judicial review, the Petitioner must have no other statutory remedy available to him, or must have exhausted any such remedies. So for example, if there is a statutory appeal procedure in place, the Petitioner must normally have taken that procedure to a conclusion before seeking judicial review. Where there is an alternative remedy available, the Petition for judicial review may be refused as incompetent.
Whose conduct may be reviewed?
The conduct of any person or body with powers that have been delegated or entrusted by statute, agreement or other instrument may be reviewed. The body must be an administrative body and must have some public or quasi-judicial function. Corporate bodies with purely private functions are not covered. Corporate bodies with public functions, for example regulatory organisations or quangos, are covered. Examples of individuals or bodies that can be subject to judicial review are:
The Scottish Parliament
Harbour and Airport Authorities
Scottish Football Association
The Criminal Injuries Compensation Board
What conduct may be reviewed?
The Court can review a decision, an action or a failure to act.
Title and interest to sue
The Petitioner must have title and interest to sue in order to competently raise judicial review proceedings. There is no comprehensive definition of what amounts to title and interest in relation to judicial review proceedings and there is a considerable body of case law that discusses the subject. It has been said that the Petitioner must be a party in a legal relationship that gives him a right and that right has been infringed or denied.
The Court’s job is to review the decision or action and to decide whether it is defective. The basic principle underlying judicial review is that public authorities must act according to law. This basic principle can be broken down into a number of grounds of review: -
The decision was made or the action was taken under the authority of legislation and that legislation itself was unlawful or ultra vires;
The decision or action itself may have been unlawful or ultra vires because it went beyond the powers given to the person or body in question;
The individual or body may not have exercised its discretion properly; or
The decision may have been reached by an unfair procedure.
Looking at the first two grounds together, the ultra vires principle is critical to administrative law because many public bodies are created by legislation and derive all or most of their powers from that legislation. Statutory bodies must usually be able to point to statutory authority for their actions or decisions. Any actions or decisions that go beyond the relevant legislation may be challenged as ultra vires. It does not matter whether the actions of the public authority were for the public good: motives, reasons and consequences are irrelevant. The only question is whether the action or decision fell within the limits of the authority’s statutory power.
Although it is usually actions or decisions that are challenged, a lack of action can also be challenged. A public authority that fails to perform its statutory duty is acting unlawfully and may be compelled to perform that duty through judicial review proceedings.
Turning to the third ground of review, the Courts have developed principles for reviewing the use of discretionary powers. These principles focus less on the result achieved by an administrative decision or action, and more on the factors that influenced the decision or action, and the way in which the action was taken. Discretion must always be exercised properly.
The Court will want to make sure that: -
- discretionary decisions have only been influenced by factors that can properly be considered by the public authority; and
- decisions are truly discretionary and that discretionary powers are exercised by the appropriate person or body.
In arriving at a discretionary decision, a public authority must take all relevant considerations into account. It must not consider any matters that are irrelevant. This sounds very simple but, in practice, it is often difficult to decide what relevant considerations are.
One issue that is often considered when reviewing discretionary decisions is the "unreasonableness" or otherwise of the decision. This is often referred to as the Wednesbury test after the leading case in this area. A discretionary decision, which is unreasonable in the Wednesbury sense, is ultra vires. The term "irrationality" has also been used in this context.This test considers whether a decision is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
The Court can also review the use of discretionary powers to make sure that these are only exercised by the appropriate authorities and also that each exercise of discretionary power is a true exercise of discretion. If a person or body is given a power by statute, in the absence of the authority to delegate the power, only that person or body should exercise the power. A public authority should not improperly fetter its discretion. While it is open to public authorities to have rules or policies to guide the exercise of discretion, the purely mechanical application of a policy, which ignores the special circumstances of individual cases, should be avoided.
Turning to the final ground of review, public authorities must follow any procedures set down in their enabling statutes when exercising their powers, otherwise their decisions may be reduced by the Court. In addition to this, public authorities may also be required to observe certain general principles of procedural fairness, traditionally referred to as "the Rules of Natural Justice". Failure to do so will be a ground for challenging a public authority’s decision or action. The procedure adopted by a public authority must be a fair one, free from bias or personal interest.
Human Rights and Devolution
Further grounds for review of decisions and actions have arisen by virtue of the Scotland Act 1998 and the Human Rights Act 1998. When reaching decisions or taking action, public authorities must comply with rights provided under the European Convention on Human Rights, including Article 6, which provides that every person has the right to have a full hearing before an independent and impartial tribunal in the determination of his/her civil rights and obligations.
This means that a Petitioner can seek judicial review of a decision or course of action that is incompatible with the rights provided by the European Convention.
Judicial Review Procedure
There is a distinct set of procedural rules governing judicial reviews. They may only be raised in the Court of Session: the Sheriff Court has no jurisdiction.
After a Petition for judicial review has been lodged and the Court has granted an order for intimation to the decision-making body and certain other interested parties, a hearing on the legal issues is held. This is called the First Hearing. After hearing the parties, the Judge can make a decision on the Petition or make an order for further procedure.
The judge can make a wider range of orders including:-
An order continuing the first Hearing to another date;
An order for any party who appears to lodge documents;
An order appointing a Reporter to report to him on any matter he chooses; and
An order a Second Hearing on specific issues (including for the purpose of hearing evidence).
At a Second Hearing the Lord Ordinary can adjourn the Hearing, continue it for further procedure or make a decision on the Petition.
The Judge may grant or refuse any part of a Petition for judicial review with or without conditions.
The law relating to judicial review is complex and there is a great deal of case law covering all aspects of this area. Here we have provided a brief outline of some of the main points.