Public Law

The Scottish Parliament’s Justice Committee has been hearing evidence on the Courts Reform (Scotland) Bill, which contains proposals for changes across the Scottish civil justice system.

Those proposals include reforms to the Scottish judicial review process, which would make the procedure much more like that used in England & Wales. Unlike in England & Wales, there is currently no time limit on bringing a judicial review in the Court of Session. While it has been possible for a defender to argue that a claim should not go ahead if there has been an unreasonable delay, the legal test to establish this (mora, taciturnity and acquiescence) is difficult to satisfy, and delay arguments are not often successful.

The proposed reforms would introduce a 3-month time limit, intended to make the system more efficient by making sure that challenges to decisions are raised quickly, and correspondingly giving greater certainty to any beneficiaries of the decision in question.

The other major reform is the introduction of a permission stage for judicial review petitions, again along the lines that apply in England & Wales. In order for the petition to proceed, the petitioner would have to persuade a judge that they had a “sufficient interest in the subject matter” of the petition, and also that the petition would have a real prospect of success.

The combination of that permission stage and the 3-month time limit means that the work involved in a petition for judicial review may have to become more front-loaded than it is at present. My understanding of the process in England & Wales is that the permission hearing can become the most important part of the process in some cases, with the substance more or less being argued in full at that stage.

There is therefore some opposition to the reforms, particularly on the basis that some petitioners may need to identify sources of funding before they can even embark on the work necessary just to commence the proceedings. The proposals at least do not go quite so far as in England & Wales, where the timing requirement is to raise proceedings “promptly, and in any event within three months”. This means that 3 months can still be too long a delay in some circumstances. If nothing else, therefore, petitioners in Scotland will at least have some more certainty than their counterparts down south.

Readers in England & Wales may have their own views on the wisdom of adopting something so similar to your JR procedures, and if so please do leave us a comment with your thoughts.

To find out more about the Bill and the Commitee’s deliberations, click here.

To read our Planning colleagues’ blog on what the reforms may mean in the planning context, click here.

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone

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