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right first time: A practical guide for public authorities in Scotland to decision-making and the law


annex three
A short guide to Judicial Review proceedings in Scotland

What decisions are reviewable?

A decision or failure to take a decision affecting persons by someone empowered by public law and in respect of which there is no other available remedy.

Will the Court look at the merits?

The Court cannot substitute its own decision, but can quash a decision and send it back to be considered again - except where it is an ECHR case, when the Court can re-examine the merits (see Huang v The Secretary of State for the Home Department [2007] UKHL 11; 2007 2 AC 167 and Nasseri [2009] UKHL 23)

What will the Court be looking at?

Was the decision wrong in law? Did the person making the decision have power to do so? Did he/she exercise those powers correctly? Did he/she take all the relevant information into account?

What's an irrational decision?

One that no reasonable Minister or public authority would have come to.

Can you give me examples of procedural impropriety?

A breach of duty to act fairly, failure to consult, being or appearing to be biased, failing to take into account legitimate expectations.

What kind of remedy can the Court award?

It can quash decisions, award damages, make a declaration and make interim orders, including interim interdict. The Court can of course also refuse the petition.

what happens?

Judicial Reviews are made by way of a Petition to the Court of Session in Edinburgh. All Judicial Review actions go to a judge for First Orders to be granted. The first order allows the petitioner (the person challenging the decision) to serve the petition on the respondent (the decision-maker). It is at this stage that the petitioner can also seek interim orders, for example to prevent the demolition of a building until the Court has an opportunity to consider what should happen to it at a full hearing of the case. If interim orders are sought, a caveat may be triggered. Caveats are a form of early warning system which respondents often put in place in the Court of Session in order to alert them in the event that a petitioner is seeking an award of interim orders against them. The respondent can then arrange to make representations to the judge before first orders are granted.

Once first orders have been granted, the case will be assigned a date for a First Hearing. If the matter is urgent, then this could be arranged at short notice. More often, though, a hearing may be fixed for some months ahead. The respondent can then arrange for an advocate to be appointed to represent their interests in the case. Where the respondent is the Scottish Ministers the advocate is drawn from a pre-approved list and is known as a standing junior. Standing juniors generally have either an interest or specialisation in public law. You may be invited to attend a meeting or consultation with the advocate before the hearing, and are likely to be asked to provide information regarding the decision challenged for the purpose of instructing the advocate to appear, or seeking their advice.

The first hearing can be either a short one, to decide on future procedure, or it can be a lengthier one, where detailed legal arguments are made on behalf of parties. It is also possible to have a second hearing, at which evidence can be led, either by affidavit (sworn statement), or in person. The judge may either give his or her opinion orally when he or she is finished hearing the case, or he or she may choose to think about it for a while ( makes avizandum) before issuing his or her decision. Opinions are published on the Scottish Courts web site on the date of issue.