What is Judicial Review?
Judicial review is a court procedure whereby the court is required to exercise its "supervisory jurisdiction". Essentially, this means that the court is asked to review whether a decision has been made lawfully. In most cases the decision maker will be a public body. However, and unlike in England, some decisions by private bodies such as trade unions or private members' clubs may be judicially reviewed in Scotland.
It is important to note that judicial review is not an appeal procedure. It can only take place once all available appeals and other remedies have been exhausted. Accordingly, it is sometimes referred to as a "remedy of last resort".
What types of decisions can be reviewed?
For a decision to be subject to judicial review, it must have been made by a decision maker exercising a 'jurisdiction' - i.e., a power conferred upon it providing the authority to make that decision. Such jurisdiction can be conferred on a decision maker through legislation or by contract. In making the decision, the decision maker must act in accordance with the law.
For instance, a local authority will have powers, conferred by legislation, providing it with the jurisdiction to make various decisions. Such a decision could impact upon a local business which wishes to challenge the decision's validity. There is no contract between the local authority and the business and no relevant appeal procedure. This is where judicial review comes in.
In order for judicial review to be successful, the court must consider that the decision in question was made unlawfully. The key grounds under which a decision can be challenged are as follows:
- Illegality - if the law was applied incorrectly in making the decision;
- Irrationality - if a decision was made which was so unreasonable that no reasonable person, acting reasonably, could have made it;
- Procedural Impropriety - where there has been a failure to comply with the required procedure in reaching a decision or where the procedure has been carried out unfairly (often referred to as a breach of 'natural justice').
What remedies are available?
The remedies which judicial review may afford are limited. For instance, it is important to recognise that a successful judicial review will not lead to the court simply remaking the decision in favour of the aggrieved party.
The key remedies which may be sought are:
- Reduction - where the court cancels a decision and refers it back to the decision maker;
- Declarator - a statement by the court declaring the existence of a right or obligation;
- Interdict/Suspension - orders which stop something which is being done or is likely to be done. It is also possible to obtain such orders on an interim basis - i.e., stopping something from being done, at least until the court has decided the case as a whole;
- Specific Implement - in contrast to interdict this is an order compelling a party to actively do something;
- Payment of Damages - in limited circumstances the court can award payment of money for losses suffered by a party as a result of the unlawful decision.
What is the court process?
An application for judicial review is made by petition to the Outer House of the Court of Session.
It is crucial to note that there is a time limit of three months for an applicant to present a petition to the court. This time limit begins on the day when the decision was made. Only in very exceptional circumstances can this time limit be extended.
Once a judicial review is instigated, the court's first task is to decide whether permission should be granted to allow the application to proceed. The purpose of this process is to eliminate cases at an early stage which have no prospects of success, so time and expense is not wasted.
In order for permission to be granted the court must first be satisfied that (i) the applicant can demonstrate a 'sufficient interest' in the subject matter of the application and (ii) the application has 'real prospects of success'.
To demonstrate sufficient interest an applicant must show that they are directly affected by the subject matter of the decision. In deciding who has sufficient interest the court has drawn a distinction between those directly affected by a decision and "the mere busybody". The court has considered that sufficient interest can be held by pressure groups or organisations with a wider concern in a subject matter. For instance, the RSPB had sufficient interest in challenging permission for an offshore wind farm due to the potential impact on certain species of birds.
In deciding whether there are real prospects of success, the court requires to determine whether a case has a realistic chance of succeeding. The test is not whether the case has a strong chance of being successful. Therefore, a case could pass this test so long as it is not fanciful or unrealistic.
If permission is granted, then a timetable will be set which will include a number of procedural deadlines culminating in a substantive hearing. This hearing will take place before one judge and will determine the outcome of judicial review as a whole. At the hearing, the court will hear mostly legal argument, but witness evidence can also be submitted way of affidavit.
Judicial review is designed to be a relatively quick court procedure. From initiating the case, it should take no longer than 20 weeks for a substantive hearing to take place.
Next update
Our next article will look in more depth at the scope of judicial review.
