Chapter 5: Improving judicial review procedure in the Court of Session
116. This chapter sets out the Scottish Government's proposals to improve judicial review procedure. These respond to the recommendations in Chapter 12 of the SCCR: to widen the law of standing; to introduce a time bar within which to bring judicial reviews; and to introduce a requirement to obtain leave before being able to bring a judicial review.
117. The SCCR were persuaded that the current law on standing was too restrictive and recommended that the separate tests of title and interest should be replaced by a single test: whether the petitioner has demonstrated a sufficient interest in the subject matter of the proceedings.28
118. The SCCR were also persuaded that there is a public interest in challenges to the decisions of public bodies being made promptly and resolved quickly. Accordingly, they recommended that petitions for judicial review should be brought promptly and within a period of three months, subject to the court's discretion to permit a petition to be presented outwith that period.29
119. In addition the SCCR heard that the introduction of a pre-action protocol and a procedure, by which a respondent may oppose the granting of permission, in England and Wales, resulted in around a third of all applications for judicial review being resolved prior to the permission stage. Therefore, the SCCR recommended the introduction of a requirement to obtain leave to proceed with an application for judicial review. 30
The Scottish Government response - options considered
120. The Scottish Government's proposals in this chapter should be read along with the SCCR's proposal to abolish the distinction between ordinary and petition procedure (discussed in Chapter 6), which the Scottish Government also accepts, and which should act to stop cases falling foul of technicalities by being raised in the wrong form.
Whether to alter the scope of the supervisory jurisdiction
121. The SCCR did not recommend fundamentally altering the scope of the Court of Session's underlying supervisory jurisdiction, and the Scottish Government is not minded to alter that.
Whether it is necessary to widen the law of standing
122. The Court of Session's supervisory jurisdiction essentially exists at common law. Since the SCCR was published, the scope of standing required to invoke the Court of Session's supervisory jurisdiction has been widened to the extent recommended by the SCCR as a result of the UK Supreme Court's decision in AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland)31.
123. As such, the Scottish Government does not consider it necessary to provide further for this matter in primary legislation.
Introducing a leave to appeal mechanism
124. At present, there is no mechanism by which unmeritorious applications for judicial review can be sifted out. The SCCR noted that there "has been a steady increase in numbers of petitions for judicial review. These take up a disproportionate amount of sitting days"32. In England and Wales, where a permission stage has been introduced, permission is refused in a relatively high percentage of cases and only in a small minority of cases is there an appeal against refusal of permission. This indicates to the Scottish Government that a leave to appeal stage works well in sifting out unmeritorious cases.
125. The Scottish Government therefore agrees with the SCCR's recommendation that there should be a mechanism to sift out applications which have no realistic prospect of success.
Introduction of a time bar for judicial review
126. The SCCR recommended the introduction of a time bar for bringing a judicial review. The SCCR recommended that petitions should be brought "promptly" and, in any event, within a period of 3 months, subject to the exercise of the court's discretion to permit a petition outwith that period33.
127. The Scottish Government agreed with the recommendation at the time the SCCR was published. However, since then, recent case law has held unenforceable a similar requirement in rule 54.5 of the Civil Procedure Rules in England and Wales34, when a claimant sought to rely on an EU Directive. The basis for the decision was that "promptly" was considered to be too uncertain.
128. The Scottish Government is nevertheless concerned to ensure that judicial review claims are brought timeously and ideally as soon as possible. As was argued during the SCCR's preparatory stages, "the interests of good administration, and the right of third parties to rely on administrative decisions once they have been made, require that an affected person wishing to challenge an administrative decision should do so at the earliest possible opportunity"35.
129. The introduction of a time limit in respect of judicial review should result in a speedy and effective remedy for those who feel that it is appropriate to challenge the decisions of public bodies. As stated by the SCCR it is in the public interest that such challenges are made promptly and quickly resolved.
130. The Scottish Government's proposals will result in applications being resolved more swiftly and efficiently. There is a possibility that the time-limit will result in more unmeritorious cases as those wishing to apply will have less time to consider the application. However, the Scottish Government considers that three months is sufficient time to make an application and, should an application genuinely take longer, there is a provision for the court to have discretion as regards the time-limit.
131. In addition, the introduction of the leave or permission to apply stage will filter out unmeritorious cases. The net result is that there should be fewer judicial review cases before the courts and those that do proceed will have an increased probability of early resolution.
132. The Scottish Government considers the proposals on this will balance the desire (reflected in the SCCR's recommendation itself) to ensure the earliest date of bringing a judicial review with giving parties enough time to present their case to ensure access to justice.
The Scottish Government's proposals
Introduction of a time limit of three months for judicial review claims to be brought.
133. Section 84 amends the Court of Session Act 1988, inserting a new section 27A to provide for this.
Introduction of a requirement for leave of the Court of Session before a judicial review can be brought.
134. Section 84 amends the Court of Session Act 1988, inserting new sections 27B to 27D to provide for this.
135. It could be argued that the proposal to require parties to obtain the leave of the Court of Session before a judicial review can be brought, limits access to justice. However, the Scottish Government considers that the right of a prospective applicant to request an oral hearing if there has not already been one, and the right of appeal following a refusal of permission to proceed after an oral hearing, are sufficient safeguards to ensure access to justice.
Questions (Improving judicial review procedure in the Court of Session)
Q19. Do you agree with the three month time limit for judicial review claims to be brought?
Q20. Do you agree that the introduction of the leave to proceed with an application for judicial review will filter out unmeritorious cases?
Q21. Do you agree that these proposals to amend the judicial review procedure will maintain access to justice?
Q22. What impact do you think these proposals will have on you or your organisation?