Judicial review—what it is and when it can be used—Scotland
Produced in partnership with Carolyn Morgan of Harper Macleod LLP
Judicial review—what it is and when it can be used—Scotland

The following Public Law guidance note Produced in partnership with Carolyn Morgan of Harper Macleod LLP provides comprehensive and up to date legal information covering:

  • Judicial review—what it is and when it can be used—Scotland
  • Background to judicial review in Scotland
  • Scope of judicial review in Scotland contrasted with England
  • Who can bring a claim for judicial review in Scotland?
  • What are the grounds for judicial review in Scotland?
  • Which remedies may be awarded?
  • Alternative remedies, remedy of last resort?
  • The Gill Review and Consultation
  • Courts Reform (Scotland) Act 2014
  • The future of judicial review in Scotland
  • more

Background to judicial review in Scotland

Judicial review represents the means by which the courts control the exercise of governmental power. Judicial review has developed to ensure that public bodies, which exercise law-making or adjudicatory powers, are kept within the confines of the power conferred.

The Human Rights Act 1998 (HRA 1998) extended the traditional scope of judicial review to protect instances where a public body fails to respect the human rights of an individual. The HRA 1998 requires that all public bodies comply with the right protected by the European Convention on Human Rights and judicial review proceedings may be brought to enforce that legal duty. For more information see: Dealing with a human rights challenge.

Decision makers must not only exercise their powers in the correct manner as prescribed by the statute and in accordance with human rights, but must also comply with the rules of reasonableness, natural justice and fairness.

In essence, the courts seek, by judicial review, to ensure four principal objectives:

  1. that Acts of Parliament have been correctly interpreted

  2. that discretion conferred by statute has been lawfully exercised

  3. that the decision maker has acted fairly, and

  4. that the exercise of power does not violate human rights

To a large extent, the court is more interested in the process of decision making rather than the actual result. The scope