Judicial review in Scotland
Encyclopedia
Judicial review in Scotland functions within the framework of Scots administrative law
.
The power of judicial review
of all actions of governmental and private bodies in Scotland
is held by the Court of Session
. The procedure is governed by Chapter 58 of the Rules of Court.
Approximately 600 judicial review cases are raised every year, but most are settled by agreement with only a small minority having to be decided by the court.
Despite the procedural differences, the substantive laws regarding the grounds of judicial review in Scotland are similar to those in other western legal systems, with decisions in one jurisdiction regarded as highly persuasive in the others. There is, however, one substantial difference in Scotland since there is no distinction between review of a public body and a private body, which is different from, for example, judicial review in England and Wales, where review is only possible in the case of a public body or a quasi-public body (West v. Secretary of State for Scotland).
Generally, review is confined to purely procedural grounds (the official action was illegal or improper), although the court will also sanction decisions which are, in substance, so unreasonable that no reasonable decision-maker could have reached it (so-called Wednesbury unreasonableness
). A more rigorous standard of substantive review is applied where the matter complained of touches upon the pursuer's rights in terms of the Human Rights Act 1998
.
Scots administrative law
Scots administrative law governs the rules of administrative law in Scotland, the body of case law, statutes, secondary legislation and articles which provide the framework of procedures for judicial control over government agencies and private bodies....
.
The power of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of all actions of governmental and private bodies in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
is held by the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
. The procedure is governed by Chapter 58 of the Rules of Court.
Approximately 600 judicial review cases are raised every year, but most are settled by agreement with only a small minority having to be decided by the court.
Procedure
There are no time limits on seeking judicial review, although if proper administration is prejudiced by delay on the part of the pursuer, the court may exercise its discretion and refuse to grant a review.Despite the procedural differences, the substantive laws regarding the grounds of judicial review in Scotland are similar to those in other western legal systems, with decisions in one jurisdiction regarded as highly persuasive in the others. There is, however, one substantial difference in Scotland since there is no distinction between review of a public body and a private body, which is different from, for example, judicial review in England and Wales, where review is only possible in the case of a public body or a quasi-public body (West v. Secretary of State for Scotland).
Generally, review is confined to purely procedural grounds (the official action was illegal or improper), although the court will also sanction decisions which are, in substance, so unreasonable that no reasonable decision-maker could have reached it (so-called Wednesbury unreasonableness
Wednesbury unreasonableness
Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 KB 223 is an English law case which set down the standard of unreasonableness of public body decisions which render them liable to be quashed on judicial review...
). A more rigorous standard of substantive review is applied where the matter complained of touches upon the pursuer's rights in terms of the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
.