What is judicial review

This section discusses the limited number of reasons that can form the basis of an application for judicial review.



This content applies to Scotland

What is judicial review

Judicial review in Scotland can only be brought in the Court of Session against a public body such as a local authority. Judicial review may also be brought against a registered social landlord/housing association where they are exercising a public function. [1]

There are only a limited number of reasons that can form the basis of an application for judicial review. Taken together, these are referred to as the principles of judicial review, or grounds of judicial review.

Judicial review must be clearly distinguished from appeal. In administrative law generally, rights of appeal exist only when created by statute, and the relevant statute specifies the scope of the appeal, which may be restricted to points of law, or extended to cover questions of fact and discretion. By contrast, judicial review stems from the Court of Session's inherent power to supervise the legality of administrative action. It can therefore provide a remedy even when no statutory right of appeal is available. The Sheriff Court has no equivalent jurisdiction. [2] The scope of judicial review is invariable, i.e. the court may review the legality of administrative decisions, but not their merits. The question for the Court of Session is not 'was the decision right or fair' but 'was the decision legal'.

Judicial review procedure is governed by the Rules of Court, [3] and the rules are contained in the Rules of the Court of Session 1994. [4]

Footnotes

  • [1]

    R.(on the application of Macleod) v Peabody Trust Governors [2016] EWHC 737 (Admin) [2016] H.L.R. 27; R. (On the Application of Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 [2009] H.L.R. 40

  • [2]

    Brown v Hamilton DC, 1984 SLT 397

  • [3]

    Act of Sederunt (Rules of Court Amendment No 2) Judicial Review 1985, which inserted a new Rule of Court 260B into the then Rules of the Court of Session 1965

  • [4]

    Act of Sederunt (Rules of the Court of Session 1994) 1994, Chapter 58, SI 1994/1443