In this article we will take a more detailed look at the scope of judicial review in Scotland, the types of decisions which fall within its remit and the grounds under which they can be challenged.
Decisions Subject to Review
Judicial review is the process whereby the court exercises its 'supervisory jurisdiction' in determining whether a decision has been made lawfully.
In the case of West v Secretary of State for Scotland 1992 S.C. 385 Lord Hope considered the scope of judicial review. He stated that the judicial review process is "to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument."
In West Lord Hope considered that there must be a "tripartite relationship, between the person or body to whom the jurisdiction, power or authority has been delegated or entrusted, the person or body to whom it has been delegated or entrusted and the person or persons in respect or for whose benefit that jurisdiction, power or authority is to be exercised".
This test has, at times, been criticised for being difficult to understand (and even to apply) but it remains the leading authority for the scope of judicial review in Scotland. In most situations, the test can be summarised as requiring a decision which consists of the following:
- The decision maker (to who power has been delegated).
- The legislature (who has delegated the power through legislation).
- The individual or body (who is affected by the exercise of this power).
In practice, an example of this relationship could be as follows:
- A transport authority has made a decision to provide grant funding to Business A.
- The power to make this decision has been delegated to the transport authority by the Scottish Government.
- The decision has affected Business B which was not awarded grant funding.
In this situation, Business B could apply to the court for judicial review of the transport authority's decision.
Does Judicial Review Apply only to Public Decisions?
Judicial review is often thought of as applying only to decisions involving at least an element of public law. Whilst this is the case in England, the scope of judicial review in Scotland can also extend to private decisions. It was also stated by Lord Hope in West that "the competency of the application does not depend upon any distinction between public law and private law, nor is it correct in regard to issues about competency to describe judicial review as a public law remedy."
Therefore, in Scotland, decisions of private bodies can also be amenable to judicial review. For instance, the court has determined several cases relating to the legality of private member golf clubs deciding to expel members. In Crocket v Tantallon Golf Club 2005 SLT 663, it was said by Lord Reed, applying the test in West, that "there is a tripartite relationship under which members of the [golf club] council are entrusted by members of the club as a whole with a decision-making power in respect of any member whose conduct is in issue". It was unsuccessfully argued that the relationship was governed by the law of contract as the golf club member had contracted with all other members to be bound by the club rules.
This was further confirmed in Wiles v Bothwell Castle Golf Club 2005 SLT 785 where Lord Glennie stated that "it is now clearly established that proceedings in court by a member to vindicate his rights are, in Scotland, properly to be taken by way of judicial review."
The position in Scotland is to be distinguished to that in England, where judicial review is reserved only for decisions involving an element of public law.
Alternative Remedy
Even if a decision does fit the tripartite test in West, it does not automatically fall within the scope of judicial review. Judicial review is only suitable as a "remedy of last resort" where the applicant does not have any alternative route of challenge. It is common for many decisions to have a right of appeal. For example, an unsuccessful application to a health board to open a new pharmacy can be appealed to the National Appeal Panel. In the golf club example, the club rules may allow the aggrieved member a right of appeal. It is only after such appeal routes have been exhausted that judicial review could become a suitable remedy.
However, an alternative remedy must be considered to be an 'effective remedy' in order to stave off the prospect of judicial review. In BC & others v Chief Constable [2018] CSOH 10 a number of police officers challenged the legality of a private WhatsApp conversation being used as evidence in police disciplinary proceedings. The WhatsApp conversation was obtained from one of the officers in the context of an entirely unrelated investigation. A judicial review was brought prior to the disciplinary proceedings being heard at a misconduct hearing. It was argued by the Chief Constable that an alternative remedy existed, as the argument of admissibility of evidence could be made at the misconduct hearing and/or any subsequent appeal before the Police Appeals Tribunal. It was accepted by Lord Brailsford that the misconduct hearing could competently deal with the question of admissibility of evidence. However, this would be done within the context of a "factual inquiry" rather than the question being dealt with as a discrete point. Lord Brailsford found this not to "constitute a satisfactory method for the raising and determination of important questions of law such as those raised in the circumstances surrounding the present misconduct proceedings."
It is therefore worth bearing in mind that the existence of an alternative remedy is not always a bar to judicial review proceedings. It should be considered whether the alternative procedure can be considered to be a truly effective remedy in the circumstances.
