Brief Guide To Judical Review

WHAT IS JUDICIAL REVIEW?

In Scotland, the Court of Session has a supervisory power to consider administrative actions to make sure that legal powers have been used lawfully and properly. This is exercised through the process of judicial review.

THE AVAILABILITY OF ANY OTHER STATUTORY REMEDY

Before bringing a petition for judicial review, the Petitioner must have no other statutory remedy available to him, or must have exhausted any such remedies. So for example, if there is a statutory appeal procedure in place, the Petitioner must normally have taken that procedure to a conclusion before seeking judicial review. Where there is an alternative remedy available, the Petition for judicial review may be refused as incompetent.

WHOSE CONDUCT MAY BE REVIEWED?

The conduct of any person or body with powers that have been delegated or entrusted by statute, agreement or other instrument may be reviewed. The body must be an administrative body and must have some public or quasi-judicial function. Corporate bodies with purely private functions are not covered. Corporate bodies with public functions, for example regulatory organisations or quangos, are covered. Examples of individuals or bodies that can be subject to judicial review are:

Local Authorities The Scottish Parliament Harbour and Airport Authorities Scottish Football Association Universities Rail Authorities Chief Constables Housing Associations Arbiters The Criminal Injuries Compensation Board WHAT CONDUCT MAY BE REVIEWED?

The Court can review a decision, an action or a failure to act.

TITLE AND INTEREST TO SUE

The Petitioner must have title and interest to sue in order to competently raise judicial review proceedings. There is no comprehensive definition of what amounts to title and interest in relation to judicial review proceedings and there is a considerable body of case law that discusses the subject. It has been said that the Petitioner must be a party in a legal relationship that gives him a right and that right has been infringed or denied.

GROUNDS OF REVIEW

The Court's job is to review the decision or action and to decide whether it is defective. The basic principle underlying judicial review is that public authorities must act according to law. This basic principle can be broken down into a number of grounds of review: -

The decision was made or the action was taken under the authority of legislation and that legislation itself was unlawful or ultra vires; The decision or action...