REVISION CHECKLIST FOR LECTURES 1-6.

West v Secretary of State for Scotland

 Lord Hope established “tripartite relationship” required to bring an action against public body in
Scotland: there had to be power given to body, party entrusted with that power and decision
made by body that affects ur rights
 scope of judicial review
o to ensure that body doesn’t abuse that power or fail to do what that power requires
o list of grounds of review is capable of being adapted in accordance with development of
administrative law
o to assess HOW decisions are made, not WHAT they are; if body has acted outwith its
jurisdiction CoS will step in and tell them to fix it but not HOW they should fix it

Territorial Scope (Tehrani case): there is no extra territorial jurisdiction courts enjoy; must be within
territory of Scottish courts
 Court of Session has jurisdiction over decisions taken in Scotland, relating to people located in
Scotland
 Tehrani v Secretary of State for the Home Department:
o Petitioner must show “sufficient connection with Scotland” to invoke supervisory
jurisdiction of Court of Session – factors HoL considered here were: petitioner was
resident in Scotland; “harmful effects” were likely to be felt in Scotland; determination was
made exercising UK-wide jurisdiction
o Physical location of where decision took place isn’t decisive – even if appeal took place
in England, as long as it applied UK law it could still be brought for judicial review in
Scotland
o where both courts have jurisdiction, case is to be treated like any other case over which
2 jurisdictions preside – wherever case starts off in is the one where jurisdiction applies
unless respondent has taken plea of forum non conveniens whereby forum is deeply
inconvenient for him in which case it will take place somewhere else

What are the differences in the procedure of judicial review between Scotland and England?/Standing
Before and After Axa. Remember, there must be a petitioner for the Court of Session to review an
administrative decision. It cannot review decisions on its own initiative./What changes were brought
to the procedure of judicial review through Courts Reform (Scotland) Act 2014 (Introduction of
Permission Stage, Sufficient Interest Test, Time Limits)
 Court of Session can’t review acts of decision makers on its own initiative; someone must bring
in something for judicial review; rules of ‘standing’ developed under common law have
established who has capacity to bring action for judicial review
 standing rules in England: sufficient interest test
 standing rules in Scotland pre-Axa: title and interest to sue
o title to sue
 D&J Nicol v Dundee Harbour Trustees: Applicant “must be a party to some legal
relationship which gives him some right which the person against whom he raises
the action either infringes or denies”
 Scottish Old People’s Welfare Council, Petitioners: court found that social
security legislation conferred rights to bring proceedings to enforce its
proper administration on general public subject to demonstrating interest;
thus, organisation contained members who had those rights and had title to
sue
  Rape Crisis Centre v. Secretary of State for the Home Department:
petitioners sought to challenge decision to grant Mike Tyson (convicted
rapist) leave to enter UK to participate in boxing match; court held that
immigration rules were only addressed to immigration officials and no
express/implied rights were conferred on any other parties; thus
organisation didn’t have title to sue
o interest to sue
 Scottish Old People’s Welfare Council: established interest requirement which
Council couldn’t satisfy bc decision didn’t affect actual claimants though Rape
Crisis Centre did due to its concrete aim [to stop Tyson’s entry into UK]
 exception: public interest intervention rules where applicant doesn’t need title and interest to
sue bc they are intervening in existing petition; they only need to show that petition concerns
matter of public interest and that their intervention is relevant to cause, will assist court and
won’t unduly delay parties’ rights
o Sustainable Shetland v Scottish Ministers: Royal Society for Protection of Birds applied
for leave to intervene in public interest in protest against wind farm; Inner House refused,
holding that they should have intervened at earlier stage and that there was no benefit to
be derived from intervention as legal issue was already being argued by one of actual
parties to case
 In Gill Review [report of Scottish civil courts review that looked at judicial review and how it was
working in all its dimensions] Lord Gill said test should be brought in line with English sufficient
interest test
o AXA General Insurance Limited, Petitioners: 2009 Act entitled people to sue insurance
companies for damages due to personal injury; insurance companies said SP didn’t have
power to pass this law; certain people had attempted to come into case as additional
respondents; Lord Hope said only sufficient interest test [which depends upon context]
was required – petitioner needed to be “directly affected” and not “mere busybody”
o Courts Reform (Scotland) Act 2014 which implemented Gill Review recommendations
thus provided (in s89) that standing was satisfied by sufficient interest
 In England there is strict 3-month time limit (CPR Part 54.5); in Scotland there was traditionally
no specific time limit within which application had to be brought unless statute imposed it but
respondent public authority may make common law preliminary plea of mora, taciturnity and
acquiescence; if sustained, plea will suffice to dismiss application without consideration of merits
of case
o Mora is unreasonable delay in bringing legal proceedings but period of time required to
establish mora depends on facts and circumstances of case; taciturnity connotes
petitioner's failure to assert claim when it should reasonably be expected that person in
petitioner's position would speak out; acquiescence implies that petitioner by their conduct
when viewed objectively has assented to decision
o Uprichard v Fife Council: unjustified 19-week delay coupled with costly reliance meant
that application was dismissed
o Hanlon v Traffic Commissioner: All three elements – mora, taciturnity and acquiescence
– must be present to found plea: delay alone is not enough (Somerville v Scottish
Ministers)
o Gill Review recommended 3-month time limit like in England; 2014 Act s89 thus
established 3-month time limit beginning with date on which grounds giving rise to
application first arise or “such longer period as the Court considers equitable having
regard to all the circumstances”.
 o McHarg’s criticism: “[A] statutory time bar shifts the burden of proof from the respondent
to establish that the delay was unreasonable to the petitioner to prove that it was not.
Moreover, there is a worrying suggestion in the Scottish Legal Aid Board’s response to
the consultation on the draft Bill that petitions brought after three months are unlikely to
obtain legal aid”.
 In England leave from court is required before petition for judicial review can proceed to full
hearing; in Scotland no leave was required
o Gill Review recommended leave filter to filter out unmeritorious claims and prompt early
settlement – thus petitioner had to show sufficient interest AND real prospect of success;
2014 Act s89 thus established leave filter
o McHarg’s criticism: This creates unnecessary additional barriers to access to judicial
review in Scotland.
 Historically in Scotland standing was more restrictive than in England; for other matters e.g.
leave, timing, etc. Scotland had wider rules; however, Scots law has aligned with England now

The Court of Session can also review a public authority’s failure to act and can compel the authority
to take positive action through judicial review.
 West: in addition to any excess/abuse of power, Court of Session can also review public
authority’s failure to act within limits of its jurisdiction
 HRA 1998 s6(6): an act includes failure to act but doesn’t include failure to introduce in/lay before
Parliament a proposal for legislation or make any primary legislation or remedial order
 GCHQ: procedural impropriety includes failure to act with procedural fairness

What are the available Remedies? Remember, the Court of Session can order remedies regardless if
these were sought in the original petition.
 court can do many things:
o reduction – set aside decision
o declarator – declare that some rights exist
o suspension – suspend decision before administration looks at it again
o interdict – prevent someone from doing sth
o implementation – compel implementation of particular performance
o restitution and payment – restore ur position + give u damages
 but court can’t interfere with a decision – it doesn’t act as a formal appeal on merits of decision

What are the categories of illegality?

 excess of powers (substantive ultra vires)
o whatever source power comes from, someone who exercises public power must be able
to point to this source and say it is making a decision in terms of this law – if it cannot
show that legal basis for exercise of decision-making powers, then that position is not
likely to be upheld by courts
o Bromley LBC v Greater London Council: GLC had acted beyond its powers in issuing
requirement that London boroughs increase levy rate in order to fund 25% reduction in
bus and tube fares which it had implemented in fulfilment of commitment made in election
manifesto; local authority owed fiduciary duty to its ratepayers, occupied position of trust
and couldn’t unduly burden ratepayers; HoL thus found GLC’s policy to be unlawful [ultra
vires]
o in addition to powers conferred on local authority in power-conferring instrument, Local
Government (Scotland) Act 1973 s69 confers implied powers on local authority – powers
 to do anything calculated to facilitate/is conductive/incidental to discharge of any of their
functions
o distinction between core duties/incidental powers – public authorities can also
engage in related activities above and beyond their formal powers
o Local Government in Scotland Act 2003 s20 confers powers on local authority to do
anything to promote wellbeing of community
 error of law
o decision-maker misconstrued provisions empowering them to act; authority must direct
itself properly on law or decision isn’t valid
o R v Home Secretary ex parte Venables: Home Secretary misdirected himself in law in
determining “tariff” period for 2 young murderers; he didn’t follow specific legal powers
analogous to those of sentencing judge which imposed duties on him to consider
justification of continued detention and children’s welfare when setting tariffs, instead
succumbing to public pressure; held that policy applied by Secretary of State was unlawful
o Anisminic v Foreign Compensation Commission: established that it isn’t necessary to
draw distinction between “jurisdictional” errors and “non-jurisdictional” errors; error of law
is invalid wherever committed
o National Aids Trust v NHS England: NHS England erred in deciding it had no power/duty
to commission preventative drugs in issue; not only positive acts can exceed law; when
omissions take place, error of law still occurs
 unlawful delegation
o statutory delegate can’t sub-delegate – ensures responsibility
o Young v Fife Regional Council: Committee tasked with decision couldn’t rely on sub-
committee
o however, local authorities are in most circumstances permitted to act through
subcommittees and officers by Local Government (Scotland) Act 1973 ss.56-7
o Carltona Limited v Commissioners of Works: established Carltona principle –
powers/duties conferred over Minister may properly be exercised by officials (civil
servants) for whom the minister is responsible to; parliament officials are taken to be the
alter-ego of their ministers
 unlawful fettering
o where decision-maker is given discretion by parliament to make decision, decision-maker
must consider matter on its merits and individual circumstances; it can’t adopt policy which
restricts/fetters that discretion
o Sagnata Investments Limited v Norwich Corporation: it can’t adopt policy that certain
applications will always be refused, here in relation to blanket ban on amusement arcades
in Norwich
o Miss Behavin’ Ltd v Belfast CC: however, blanket ban can be justified in all circumstances,
i.e. Belfast can ban sex shops
o legitimate expectation can arise from express promise given on behalf of public authority
- public authority says they’re going to behave in certain way so we have right to expect
that behaviour; u enjoy that right until u r told u can no longer enjoy it and public authority
withdraws it on rational ground
o R v North & East Devon HA ex parte Coughlan: Health Authority promised applicant that
she would receive care at nursing home for life; this was not unlawful fettering on future
exercise of discretionary powers bc this gave rise to legitimate expectation that local
authority would keep their ward absent; for health authority to break its promise there
needed to be “overreaching justification for [not] doing so”
 improper purpose
o bodies may not use powers given for stated purposes for other purposes
o Municipal Council of Sydney v Campbell: Council was authorised to purchase land for
developing purposes; court looked v closely at statute; compulsory purchase was not to
be used for investment reasons
o Congreve v Home Office: threat to revoke television licence unless fee was paid to extort
money from people was improper use of discretion to revoke television licences
o Highland Regional Council v British Railways Board: “ghost trains” running on railway line
to avoid closure of expensive but unpopular railway line and accompanying consultation
that would be required was improper use of discretion; court said replacing it with service
wasn’t what statute intended when conferring power to remove one line
 relevance
o power is not lawfully exercised if it takes into account irrelevant considerations/fails to take
into account relevant considerations
o R v Somerset County Council ex parte Fewings: court said u can’t take into account
irrelevant considerations but that doesn’t mean u have to account for ALL relevant
considerations; local gov act 1971 said that when council want to acquire land it can only
do so for benefit and improvement of area; council’s decision to ban hunting on basis of
animal cruelty was found to be unlawful bc though animal cruelty wasn’t necessarily
irrelevant consideration decision was made on moral grounds rather than administrative
which was not purpose of statute
o R v Home Secretary ex parte Venables: Home Secretary misdirected himself in law in
determining “tariff” period for 2 young murderers; he didn’t follow specific legal powers
analogous to those of sentencing judge which imposed duties on him to consider
justification of continued detention and children’s welfare when setting tariffs, instead
succumbing to public pressure; held that policy applied by Secretary of State was unlawful

What was the Impact of the Human Rights Act to judicial review? Remember, the Scottish
Parliament is considered to be a public authority for the purposes of the Human Rights Act 1998 s6.
 HRA 1998 s.6 created new statutory head of illegality – established that it is unlawful for public
authority to act in way that breaches convention right
 this doesn’t apply where
o authority couldn’t have acted differently as a result of one or more provisions of primary
legislation; or
o in the case of one or more provisions of, or made under, primary legislation which can’t
be read or given effect in way which is compatible with Convention rights, authority was
acting so as to give effect to or enforce those provisions
 HRA 1998 s6(3) defines “public authority” as court/tribunal/any person [not in connection with
Parliament/House of Parliament] whose functions are of public nature
 HRA 1998 s6(6) extends “act” to include failure to act but doesn’t include failure to introduce to
Parliament proposal for legislation/make any primary legislation/remedial order
 shorter time limit (1 year) under HRA 1998 s.7(5) for breach of ECHR right
o R (North Cyprus Tourism Centre) v Transport for London: court held that ban on North
Cyprus Tourism Centre’s holiday advertisement posters by London authority for political
reasons was considered breach of ECHR art.10 which guarantees freedom of expression
o R (Begum) v Denbigh High School: demonstrated that in domestic judicial review court is
more concerned about way local authority makes decision; in Convention judicial review
it’s what decision local authority makes; Begum brought action against her school’s
 Muslim policy which permitted only particular type of Muslim dress on basis of ECHR art.9
(freedom of religion and conscience) and art.2 (freedom of education); court held policy
was justified, establishing that each school has right to form its own uniform policy; though
art.9 right to hold religious belief is absolute, right to manifest ur religious belief is subject
to certain restrictions; therefore, court found that uniform policy didn’t violate art.9
o Miss Behavin’ Ltd v Belfast CC: court rejected claim that refusal to grant license to sex
shops was freedom of expression issue and held that this was licensing issue, saying that
decision-makers are better placed to make decision on limitation of rights than they were

Procedural Impropriety: Express provision / common law standard, Mandatory / Directory, Natural
Justice and Fairness, Legitimate Expectations, Right to be heard, Duty to give reasons, Rules against
bias.
 GCHQ: established that there are 2 elements to procedural impropriety
o breach of express provision of instrument granting decision-making power: courts can
ensure that prescribed procedural standards have been observed
o breach of implied provision/common law implied standards of procedural
propriety/principles of natural justice
 Moss’ Empires Ltd v Assessor for Glasgow: authority’s decision can be quashed if
it does right thing in wrong way; petitioner was not informed that right of appeal
was available to him which was enough to render decision nullity
 court may hold that petitioner in absence of concrete right nevertheless had
legitimate expectation that decision-maker would act in particular way; allowed
fairness in public administration so petitioners and ordinary citizens could place
their trust/reliance on particular conduct of public decision-maker; to be decided by
courts in each case; there are 2 elements to this doctrine
 procedural: public authority has followed certain way of making decisions in
past which petitioner relied on and that way changed to petitioner’s
detriment
 substantive: applicant seeks particular benefit/commodity, for instance
welfare benefit; once again claim to such benefit will be founded upon some
governmental action which is said to justify existence of relevant expectation
 nonetheless, it is always balancing act between what courts supervise and right
and liberty of governments and administration to make changes for public interest
 the liberty to make policy changes is inherent in government
 R v North & East Devon HA ex parte Coughlan: established that legitimate
expectation shouldn’t unduly fetter discretionary choices; legitimate
expectation requires proof of expectation + proof that public body had
sufficient reasons to depart from expectation
 A-G of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629: Where public body has
made ‘representation’ as to its future conduct
o board people of Vietnam were flocking in great numbers to HK
seeking political asylum; sudden change of immigration policy where
certain undertaking/representation made to this category of
immigration applicants was suddenly devoid; felt that undertaking
was taken in such specific and concrete terms to give rise to
legitimate expectation
  Walsh v Secretary of State for Scotland: in certain circumstances where
sufficiently concrete release date has been announced it might be case that
petitioner can claim that legitimate expectation has arisen
 Rooney v Chief Constable of Strathclyde Police: legitimate expectation that
procedural guidelines issued by the Secretary of State would be followed
 natural justice and fairness
 R (on the application of Mohamed) v Secretary of State for Foreign and
Commonwealth Affairs: neither party must privately communicate with judge
 3 basic elements
o right to be heard – audi alteram partem – no general common law
requirement for hearing for every case but courts have typically
argued that fairness requires hearing taking place;
 Irvine v Royal Burgess Golfing Society of Edinburgh: Golfing
Society was held to be procedurally improper because it failed
to give member who was kicked out of club for disrupting other
members’ play opportunity/procedure to give his version of
events; established that failure to hold hearing may render
decision invalid
o duty to give reasons
 English v Emery Reimbold & Strick: justice will not be done if
it is not apparent to parties why one has won and other has
lost; courts deny that there is general common law rule
requiring reasons to be given for decisions but fairness and
ability to determine whether decision-making process has
been intra vires may require that reasons are given
 even where there is no duty to give reasons but reasons have
been given, courts will take it upon themselves to view those
reasons to decide whether decision was intra/ultra vires
 (Smith) v Parole Board (No 2); R (Hammond) v Home
Secretary: there is no requirement for oral hearing to take
place for decision to be deemed fair; it will depend on
circumstances of case; the greater the impact of the decision
to the petitioner, the greater the likelihood of lack of oral
hearing being found unfair
o rules against bias
 actual bias: judge is party to litigation/has interest in outcome;
leads to automatic disqualification, e.g.
 Sellar v Highland Railway Co: arbiter had pecuniary
interest – was shareholder in party to arbitration
 R v Bow Street Metropolitan Stipendiary Magistrate, ex
parte Pinochet Ugarte (No. 2): interests in promotion of
cause
 potential bias: conduct/behaviour of judge is such as to give
rise to suspicion that he is not impartial possible
disqualification; test is applied to determine whether decision-
maker should be disqualified
 Porter v Magill: The question is whether the fair-minded
and informed observer, having considered the facts,
 would conclude that there was a real possibility that the
tribunal was biased.
 Locabail (UK) Ltd v Bayfield Properties Ltd: religion,
ethnic or national origin, gender, age, class, means or
sexual orientation, social or educational background,
previous political associations, extra-curricular
utterances, membership of social bodies and Masonic
associations can’t disqualify judge for bias
 Hoekstra v HMA (No 2), 2000 SCCR 367: Lord
McCluskey’s scathing newspaper article attacking
Human Rights Act was enough to disqualify him for
bias in case involving criminals raising human rights
arguments
 courts used to make distinction between
o mandatory procedural requirements – non-compliance with these requirements is fatal to
validity of decision
o directory procedural requirements – non-compliance doesn’t affect validity
 R v Soneji: Lord Steyn held that mandatory/directory distinction had outlived its usefulness bc it
was felt to lead to inconsistent conclusions in different cases and suggested looking at whether
Parliament intended non-compliance to result in total invalidity; however, as j munro says,
statutes rarely make clear what effect of non-compliance will be so it will have to fall to courts to
determine issue which is question of construction [of interpretation] to be decided by reference
to whole scheme and purpose of measure, necessitating weighing of many complicated factors,
e.g. importance of condition prejudice to private rights and interests flowing from non-compliance
and claims of wider public interest, etc. to decide what legal effects are
 Shahid v Scottish Ministers: some parts seemed to affirm approach in Soneji whereas others still
seemed to rely on “traditional” view of consequences of “merely directory” provision and suggest
that distinction may yet have continuing force in law

Irrationality / Wednesbury Unreasonableness: Definition and cases

 Associated Provincial Picture Houses Ltd v Wednesbury Corporation: “Wednesbury
unreasonableness” applies to a “decision which is so outrageous in its defiance of logic or
accepted moral standards that no sensible person who had applied his mind to the question to
be decided could have arrived at it”.
o high standard of incredible stupidity
 R v Chief Constable of Sussex, ex parte International Ferry Traders Ltd: where livestock
exporters weren’t given police protection against animal rights activists this was not found to be
unreasonable or so unreasonable as to be irrational bc decision-maker in devoting police
resources had to take into account other competing factors and was able to say that 24hr police
protection was not necessary for lives of activists
 R v Secretary of State for the Environment, ex parte Nottinghamshire County Council: political
judgment by secretary of state was not found to be irrational; courts were reluctant to intervene
in matter of public financial administration on ground of irrationality bc public authorities are
believed to be better placed to make these sorts of decisions than courts as courts would not
merely be looking at unlawfulness of decision they would also have to take into consideration
whether financial decision was of merit; thus financial claims on ground of irrationality don’t
usually succeed unless decision can be shown to be one taken in bad faith or improper motives
 R. v Secretary of the State for the Home Department ex parte Bugdaycay: courts were more
willing to go into merits of administrative decision bc interest involved was asylum seeker who
was sent back and could’ve been tortured/lost his life
 Gerry Cottle’s Circus v City of Edinburgh District Council: court held that council was acting
outwith its licensing powers by refusing application based solely on view that concept of
performing animals was wrong; closely related to ‘improper purpose’
 La Belle Angele v City of Edinburgh Licensing Board, 2001 SLT 801: licensing board’s refusal to
grant longer licensing hours on basis of “huge flyposting problem” was held to be irrational as
there was no rational nexus between flyposting problem and refusal; closely related to ‘irrelevant
considerations’
 even though Wednesbury unreasonableness threshold seems very high, often findings of
irrationality are linked to other grounds which allow judicial review claims to succeed

What is Anxious Scrutiny?

 R. v Secretary of the State for the Home Department ex parte Bugdaycay: established anxious
scrutiny doctrine; when administrative decision under challenge potentially put applicant’s right
to life – most fundamental of all human rights – at risk, basis of decision must surely call for most
anxious scrutiny
 Smith and Grady v The United Kingdom: held that bc courts have constitutional role and duty to
ensure that rights are not abused by unlawful exercise of executive power anxious scrutiny is
triggered by any fundamental right; thus, when test of proportionality was applied by ECHR on
decision prohibiting homosexuals to serve in armed forces after judicial review claim on ground
of irrationality failed in R v Ministory Defence, ex parte Smith, decision was found to have
breached ECHR art.8 right to privacy
 R v Home Secretary, ex parte Brind: thus, breach of fundamental human right of free speech
meant anxious scrutiny had to be given to reasons provided as justification for interference with
that right

The status of proportionality as a common law ground for review

 R v Barnsley Metropolitan Borough Council, ex parte Hook: stallholder’s application succeeded
on line of reasoning analogous to proportionality; stallholder’s right to have access to market was
conferred b common law and could only be taken away for just cause
 R v Home Secretary, ex parte Brind (1991 case): refusal of BBC to publicly broadcast direct
statements of IRA members was challenged on ground that it was disproportionate; HoL refused
to recognise that proportionality was separate head of judicial review recognised by UK common
law
 R (on the application of Daly) v Home Secretary: rule requiring correspondence between prisoner
and his lawyers to be examined in prisoner's absence was found to be disproportionate
restriction of prisoner’s right to privacy under ECHR art.8; Lord Steyn commented that
proportionality requires greater intensity of review than irrationality bc it requires assessing
balance decision maker has struck in terms of interests and decisions weighed into; stated that
in cases concerning Convention rights domestic courts are to apply test of proportionality; same
applies to appropriate cases concerning EU law
 [Scottish] Somerville v Scottish ministers; Fargie, Petitioners: courts continued to say it was not
appropriate to reach conclusion on proportionality as common law ground
 [Scottish] Kennedy v Charity Commission: Lord Mance argued for reception of proportionality
test into purely domestic cases, saying that it may be preferable to rigid Wednesbury test and is
 capable of being applied in less-demanding manner in defence against charges of undue
intensity

Recent Supreme Court cases on the relationship between irrationality and proportionality
 [Supreme Court case] Pham v Secretary of State for the Home Department: suggested that
judges were setting stage to rework principles of substantive review, for which proportionality
would be valuable
 [Supreme Court case] Keyu v Secretary of State for Foreign and Commonwealth Affairs:
suggested replacement of Wednesbury rationality basis which set far too high threshold with
proportionality test which was more structured and principled
 [Supreme Court case] Youssef v Secretary of State for Foreign and Commonwealth Affairs: Lord
Carnwarth made it clear that where fundamental rights are interfered with proportionality
approach to review will be appropriate; said it is unlikely that different result would be obtained
using proportionality test rather than traditional grounds of review – there is less of distinction
between these doctrines than some commentators believe; so hoped that “an opportunity can
be found in the near future for an authoritative review in this court of the judicial and academic
learning on the issue”