Judicial Review: What You Need To Know

Judicial review is a court process in which the court will review decisions, acts, or failures to act by public bodies. In Scotland, a petition for judicial review must be brought in the Outer House of the Court of Session.

In the last few years, we have seen some high-profile judicial reviews in Scotland – challenges to the government decision-making and legislation covering areas as diverse as grants of permission for oilfield activities, to the definitions of sex and gender in legislation passed by the Scottish Government.

Despite appearances, judicial review is not about challenging the merits of the decision, rather, it is about challenging the way in which the decision was made. Instead of 'appealing' a decision, judicial review is concerned with ensuring that the decision-maker has not exceeded its statutory authority; erred as to the relevant law, made factual errors or failed to follow the correct process. This can relate to a decision, passing of legislation, determining a policy, granting or refusing licences or permissions, the issuing of guidance, or even a failure to act.

Who is subject to judicial review?

The petitioner (the person or body bringing the judicial review) is called the petitioner. The body against whom it is directed is called the respondent. The respondent is typically a public or statutory body – central or local government, public bodies including regulators and ombudsmen. In Scotland it would also include certain bodies that might exercise decision-making powers over others such as professional regulatory bodies and sports governing bodies. There have been multiple successful judicial reviews of golf clubs (Crocket v Tantallon Golf Club 2005 SLT 663; Wiles v Bothwell Castle Golf Club 2005 SLT 785). This is an important difference from judicial review in England and Wales, where the decision makers amenable to judicial review are much more limited.

The general principle is that a decision which is made under a specific jurisdiction, power, or authority can be judicially reviewed, as an alternative remedy. This is known as the tripartite relationship, i.e. from a decision maker to another body under a legislative provision. The fact that an alternative remedy is possible, under private law or otherwise, does not oust judicial review as a remedy.

Who can bring a judicial review?

To bring a judicial review, the petitioner must have "standing". Standing was previously referred to as 'title and interest'. The test for standing is whether the petitioner is directly affected by the decision. A personal interest does not need to be shown if the individual is acting in the public interest, and that issue directly affects the section of the public that the individual represents. This means, an individual could bring a judicial review on behalf of a representative group.

Why bring a judicial review?

As a judicial review challenges how a decision was made, in summary, the grounds are:

• Illegality is engaged when public bodies, who operate under statutory powers and duties given to them by Acts of Parliament or secondary legislation, exceed those powers. Illegality can also include a breach of statutory duty, errors in fact or law, the failure to take account of relevant factors (or taking into account irrelevant factors), and the fettering of discretion.
  
  
• Irrationality is engaged when a decision maker reaches a decision which was so unreasonable, that no reasonable person could have arrived at it.
  
  
• Procedural impropriety relates to the failure of a public body to follow prescribed procedures, which typically occurs where procedural requirements set out in statute are not followed. Where statute does not prescribe certain procedural requirements, but the decision maker has nevertheless led an individual to believe that certain procedures will be followed, the decision maker cannot then ignore those procedures.

This ground can also be engaged where public bodies fail to comply with their duty to act fairly, or when a decision-maker fails to provide reasons for its decision.

• While proportionality is not currently an independent ground of judicial review, the ground can be seen in certain decisions, particularly where human rights are concerned.

When can you bring a judicial review?

The general rule is that the petition must be brought within three months of the relevant decision being complained about. This period can be extended for any period that the Court of Session judge considers equitable; however, it can be difficult to overcome the time limit without a persuasive reason or explanation.

What next?

If the Court of Session finds that a decision-maker has acted outside the scope of its powers, it can set aside the decision and order the decision-maker to retake the decision (but it will not tell it what that decision should be), substitute its decision (rarely!), or issue a declaration.

It is very rare for damages to be awarded. There must be an underlying basis for damages such as establishing that the flawed decision-making process caused loss to the petitioner (or group being represented).

How can judicial review be helpful?

As well as being an important method of scrutiny of public bodies, judicial review can be an important tool for private sector clients, to challenge actions of the public sector which affect its operations. That might be incoming legislation which impacts their business, planning decisions, or grants of consent for projects or funding. Timing is key when challenging a decision, particularly given the short time bar of three months, so its important for organisations to monitor upcoming legislative or policy decisions which may be of concern. When businesses are hit by decisions from public or statutory bodies which have an adverse effect on them, then it may well be appropriate to consider the scope for judicial review to challenge the decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.