UNDERSTANDING THE JUDICIAL REVIEW PROCESS

Our resident legal eagle Ewan Kennedy has helpfully put together an explanation of how the process works. Thanks to Humza’s decision to commit significant Scottish taxpayers resources to this it is worth understanding the process and likely timescale.

I think it may be helpful for me to offer a brief explanation of the system of judicial review in Scotland, since it seems that we are shortly to be spectators in a further battle of David v Goliath that could still be current at the time of the next General Election and perhaps the next Holyrood one as well. What follows is purely procedural and I offer no view on the prospects.

Judicial Review was always available in the Scottish courts, as a way of appealing administrative decisions, but originally only in relation to decisions taken by official bodies, such as government ministers, local authorities and statutory tribunals. I became interested in it quite early in my career, when I chaired a Rent Assessment Committee that decided to fix the rents of eighty privately rented houses at 40% below market value, in order to reflect the extreme scarcity of housing in Glasgow. The Court of Session reversed our decision, but the House of Lords eventually found in our favour after the case had been running for a couple of years. The case illustrates two points of relevance today, the long timescale and the fact that the Supreme Court in London hasn’t  always got things wrong and the Scottish courts got them right. 

The procedure was widened in 1988, making it possible to challenge almost any administrative decision, but the basic grounds have always remained the same. Essentially there are three main ones; there could be a suggestion of corruption; the decision might be said to be wrong in law, e.g. in our rent case, where we were said to have misunderstood the Rent Act; and the decision is claimed to have been unreasonable. In many cases the second and third of these may be found together.

The concept of what is unreasonable in law is not the same as what a lot of people would necessarily understand it to mean. Judicial review is not an appeal in the normal sense of revisiting the grounds for making the original decision and the judge deciding if he or she agrees with it. Whether or not a ministerial decision is unreasonable depends on the extent to which it is one which no minister, acting reasonably, could have made. 

The onus of proof is on the person seeking the review, not, as Dr Philippa Whitford MP stated on television a couple of days ago, for the Secretary of State to justify his decision. His reasons have already been given and he can’t change them. The question for the court is whether or not they comply with Section 35, which provides, with irrelevant material removed by me, that he can act 

“If a Bill contains provisions … which the Secretary of State has reasonable grounds to believe … make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters”.

Also, we should note that the Secretary of State had, in terms of Section 35, just four weeks within which to act, insufficient time for any significant informal negotiation.

Until 2014 there was no statutory time limit for starting an action of judicial review. I believe that the background to the reforms brought in at that time were partly in response to the United Kingdom Government in 2005 finally ratifying The Aarhus Convention, which they had reluctantly signed in 1998. It was designed to give members of the public access to information about environmental matters and to allow persons showing “sufficient interest” access to court to challenge official decisions. At that time no environmental cases at all had been brought in Scotland and few in England. The officials responsible for enforcing the Convention were pressuring the UK to make matters easier, regarding both procedures and costs. This applied in both England and Scotland, resulting here in a process led by Kenny Macaskill and a study led by Lord Gill, who I suspect was not enthusiastic. 

The results were proposals to widen the range of people who could bring a judicial review, but also to introduce a time limit, which, I suggest, was a cynical attempt to make things difficult for campaigners to get a case to court. It’s interesting that it was widely supported by the insurance companies and local authorities, being perhaps the main targets for cases, but opposed by others including the lawyers, with Advocates’ stables 5:1 against.  The Act as passed provides that a case must be brought within:

“the period of 3 months beginning with the date on which the grounds giving rise to the application first arise”

and

“No proceedings may be taken … unless the Court has granted permission for the application to proceed … the Court may grant permission … for an application to proceed only if it is satisfied that … the application has a real prospect of success.”

In the context of the current case this means that the application will first be vetted by a single judge and, if approved, put on the court roll for a hearing, again before one judge. Allowing for the written cases of both sides to be adjusted and fitted into the court calendar, that stage could take a minimum of three to four months.  That decision can then go on appeal to three judges in the Inner House, adding perhaps a further six months, with a further appeal possible to the UK Supreme Court.

I think it’s extremely unfortunate that the tight timescales outlined above have perhaps forced decisions to be taken on both sides of the Border without the fullest consideration and that they may have consequences far beyond the tenure of the decision makers. 

MY COMMENTS

Once again I am in Ewan’s debt for this very helpful explanation of how the system works. I think it is clear and allows laymen like myself to understand the gist of the process and the warning it may not always follow, which those of us outside the law, might consider the logical course

I am, as always

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