Judicial review in Scotland—grounds of challenge
Produced in partnership with Graham Horn of MacRoberts LLP
Judicial review in Scotland—grounds of challenge

The following Dispute Resolution practice note produced in partnership with Graham Horn of MacRoberts LLP provides comprehensive and up to date legal information covering:

  • Judicial review in Scotland—grounds of challenge
  • Illegality
  • Improper purpose
  • Improper delegation
  • Fettering discretion
  • Irrationality (‘Wednesbury unreasonableness’)
  • Errors of law
  • Errors of fact
  • Onerous conditions attached to a decision
  • Relevant considerations
  • More...

This Practice Note considers judicial review grounds of challenge in Scotland.

For guidance on:

  1. Other aspects of judicial review in Scotland, see Practice Notes: Judicial review in Scotland, Judicial review in Scotland—remedies, Judicial review in Scotland—raising a claim and Judicial review in Scotland—protective expenses orders

  2. other aspects of Scottish civil litigation, see: Preliminary and ongoing considerations in Scottish civil litigation—overview and Starting and progressing a civil claim in Scottish civil litigation—overview, which link through to detailed guidance on specific aspects of dispute resolution in Scotland

  3. other key areas of Scottish law and procedure, see our Scotland toolkit, and

  4. judicial review in England and Wales, see, for example, Practice Notes: Judicial review—what it is and when it can be used and Judicial review—time limits and the pre-action protocol

Key:

  1. HRA 1998—Human Rights Act 1998

  2. ECHR—European Convention on Human Rights

  3. ECtHR—European Court of Human Rights

  4. CJEU—Court of Justice of the European Union

Key grounds of challenge for judicial review by the Scottish courts include:

  1. illegality

  2. irrationality and proportionality, and

  3. procedural impropriety

all of which are dealt with in more detail below.

Illegality

Public bodies possess statutory powers and duties which are given to them by Acts of Parliament or secondary legislation. Public bodies in the UK are only able to do what the law permits (ie the doctrine of intra vires). If they act outside or beyond that scope then the

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