Aileen McHarg: Public Law, Private Law and the Distinctiveness of Scots Judicial Review

Scottish judges and textbook writers are fond of asserting the distinctive nature of judicial review in Scotland compared with England.  According to Clyde and Edward, for example, (Judicial Review, 2000, ch 2), the basis for judicial review in Scotland is a more generalised one than in England, historically grounded in equity, and not so dependent on specialised procedures or specific remedies.  This view was endorsed by the Inner House of the Court of Session in West v Secretary of State for Scotland 1992 SC 385, which held that, although the grounds of review are essentially the same in the two jurisdictions, the scope of review is not.  The correctness of West has subsequently been repeatedly affirmed both by the Scottish courts and by the House of Lords/Supreme Court, and the claimed historical and conceptual distinctiveness of Scots law is sometimes invoked as a reason for not following English authority.  For instance in Eba v Advocate General for Scotland [2010] CSIH 78 one of the reasons given by the Inner House for refusing to follow the Court of Appeal’s ruling on the reviewability of the Upper Tribunal in R (Cart) v Upper Tribunal [2010] EWCA Civ 859 was the fact that judicial review in Scotland is available as of right and not dependent upon the discretion of the court.  For the same reason, inter alia, the Supreme Court considered it necessary to give separate judgments in Eba [2011] UKSC 29 and Cart [2011] UKSC 28, notwithstanding that it thought that the extent of review of the Upper Tribunal should be the same in both countries.

In fact, though, the practical differences between Scots and English judicial review are fast disappearing.  Indeed, the Supreme Court itself has done a good job in recent months of ridding Scots judicial review of some of its more problematic idiosyncrasies.  In Eba, reiterating that the grounds of review are the same in Scotland as in England, Lord Hope held that Lord Emslie’s dictum in Watt v Lord Advocate 1979 SC 102, to the effect that the Court of Session could only correct ultra vires and not intra vires errors of law, should no longer be followed, since it was irreconcilable with the decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.  Then in Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46, the Supreme Court abandoned title and interest, as laid down by the House of Lords in D&J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7, as the test for access to judicial review.  According to Lord Hope and Lord Reed, the Nicol test had been adopted before the modern development of public law and was therefore based in irrelevant and inappropriate private law concepts which had had a damaging effect on the development of judicial review in Scotland.  Since, in public law cases, the role of the courts was to vindicate the rule of law rather than private rights, they held that the test should be based on interests alone (the precise nature of the interest required depending on the context) and should in future be referred to as ‘standing’.  This clearly resembles the English approach, although it remains to be seen how far the Scottish courts will follow England in liberalising access to judicial review.

The abandonment of title and interest in favour of the English test of ‘sufficient interest’ had in fact already been recommended by the Gill Review (Report of the Scottish Civil Courts Review, Vol II, 2009, ch 12 –, and Gill also recommended following the English approach by introducing a three month time limit within which to bring an application for judicial review, and a requirement to obtain leave to proceed.  Both recommendations have been accepted in principle by the Scottish Government, subject to consultation on the length of the time limit (Scottish Government Response to the Report and Recommendations of the Scottish Civil Courts Review, 2010 –, although they have not yet been implemented.  These proposed reforms are less welcome than the reforms of standing and review for error of law, not only because there is no strong evidence that they are necessary, but also because they are likely to bring in their wake another problematic aspect of English judicial review procedure, namely increased litigation over the exclusivity of the judicial review procedure – a  problem which already exists in Scots law, but which has not so far been of major practical concern since there is little incentive to bring an ordinary action instead of judicial review.  However, these changes, if implemented, will not only be of practical significance.  The introduction of a leave requirement, for instance, will remove the claimed conceptual difference between Scots and English law relied upon in Eba.

What, then, is left of the alleged distinctiveness of Scots judicial review?  Apart from the available remedies – there is no Scottish equivalent of the prerogative orders, so ordinary civil remedies are used instead – the major outstanding difference relates to the scope of review and the related question of the classification of the remedy.  In West, Lord Hope, as Lord President of the Court of Session, stated that in Scotland, unlike in England: ‘The competency of the application [for judicial review] does not depend upon any distinction between public law and private law, nor is it correct in regard to issues about competency to describe judicial review as a public law remedy.’  Instead, judicial review was competent to correct errors or abuses by ‘any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument.’  The appropriate test for identifying a reviewable decision was therefore the existence of a ‘tripartite relationship’ between the decision-maker, the person affected by the decision, and a third party from whom decision-making power has been delegated or entrusted.

This test has the major advantage over the English approach of not excluding from review powers derived solely from contract, and review of so-called ‘domestic tribunals’ is therefore more readily available in Scotland, even extending, in several cases, to the decisions of golf club committees.  More generally, though, the West test is highly problematic as a conceptual explanation of the scope of review and has proved no easier to apply in practice than the English public/private distinction (for fuller discussion see A McHarg, ‘Border Disputes: the Scope and Purposes of Judicial Review’ in A McHarg and T Mullen (eds), Public Law in Scotland, 2006).  Nevertheless, as already noted, Scottish judges continue to cite West with approval.  However, it too has been placed under considerable conceptual strain by the recent trend towards assimilation with English law.

The strain first began to show in Davidson v the Scottish Ministers (No 1) [2005] UKHL 76, which concerned whether the prohibition on granting coercive remedies in civil proceedings against the Crown in s.21 of the Crown Proceedings Act 1947 extended to judicial review.  In order to bring Scots law into line with the decision in M v Home Office [1994] 1 AC 377 that the prohibition did not extend to judicial review in England, but at the same time unwilling to draw a direct analogy between Scots and English judicial review, the two Scottish Law Lords, Lord Hope and Lord Rodger, introduced a distinction between ‘public law’ and ‘private law’ judicial review proceedings.  Arguing that the main purpose of the Crown Proceedings Act was to reform English law as it applied to private law proceedings against the Crown, they held that the phrase ‘civil proceedings’ in s.21 therefore only applied to private law proceedings.  Because judicial review in Scotland was not solely a public law remedy, it was not possible to exclude it entirely from the meaning of ‘civil proceedings’.  However, cases in which judicial review was being invoked against the Crown were public law proceedings, and so were not covered by the s.21 prohibition.

Although intended as a reaffirmation of West, the decision in Davidson in fact significantly revised it: contrary to West, judicial review in Scotland does involve a distinction between public law and private law, although this is a distinction that must be drawn within the judicial review caseload, rather than a means of delineating the boundaries of review.  The distinction is, however, a problematic one.  In the first place, it was not clear from the decision in Davidson how and where the boundary between public law and private law judicial review was to be drawn – there are suggestions in some places of an institutional approach to the distinction, but elsewhere of a functional approach.  Secondly, it was also unclear what, if anything, was the practical significance of the difference (although there is some authority to the effect that the grounds of review might be different for at least some categories of private decision-maker, such as arbiters – Diamond v PJW Enterprises Ltd 2004 SC 430).

Until recently, therefore, it might have been tempting to dismiss the deployment of the public law/private law distinction in Davidson as merely an expedient for getting round a problematic point of statutory interpretation, of no real practical importance.  However, the Supreme Court’s decision in Axa has both reinforced and given some substance to the distinction.  This is because both Lord Hope and Lord Reed expressly limited their rejection of title and interest to public law proceedings.  Lord Reed did not discuss what the test should be in private law cases, but Lord Hope stated that title and interest remains appropriate because: ‘The fact that a person upon whom a decision-making function has been conferred by a private contract is amenable to the supervisory jurisdiction is not something that is likely to affect anyone other than the parties to the contract.’

Nevertheless, while it may now have some substance, the distinction is no less problematic than it was before Axa.  There is no discussion whatever in Axa of how the line is to be drawn between public law and private law judicial review proceedings, and Lord Hope’s reason for differentiating them in relation to standing is, in my view, unconvincing.  While it may be true in some cases that contractually-based decisions are of no interest to third parties, just as some decisions taken under statutory authorities have no wider implications, it is not necessarily true in all cases, and certainly not in the more important instances of judicial review in the private sphere, such as in relation to self-regulatory bodies or contracted-out service providers.  It is not difficult to conceive of circumstances in which people not in a contractual relationship with such bodies – say the intended beneficiaries of self-regulation or the recipients of contracted-out services – might wish to challenge their decisions.  And while there may be legitimate concerns about over-exposing private decision-makers to potential challenges, these could readily be met by a contextually-sensitive application of an interest-based standing test, rather than by continuing to require proof of title to sue.

In fact, in my view, the attempt to distinguish between public law and private law judicial review proceedings in general is misguided.  Rather than resolving some of the problems created by West, it simply compounds the wrong-turning taken by Scots law in that case when the Inner House refused to follow English law in accepting, as I have argued elsewhere (see McHarg, 2006, above), that judicial review is always a public law remedy.  The essential problem is that, in West and subsequent cases, the Scottish courts have attempted to maintain two mutually inconsistent positions: first, that the Scots law of judicial review is fundamentally different from English law; but, second, that Scotland should follow England’s lead in relation to the substantive grounds of review, and now also in relation to procedural matters.  Instead of advancing a conceptually distinct account of the nature of judicial review in Scotland, the result, in my opinion, has simply been muddle and confusion.  By contrast, adopting the English version of the public/private distinction would undoubtedly bring with it practical difficulties, but it would provide greater conceptual coherence, by acknowledging the conceptual linkages between questions of scope, grounds and procedure.  Assimilation with English law would not, however, necessarily imply that the Scottish courts should follow every aspect of English jurisprudence on the scope of review – arguably, for instance, the English courts are wrong to exclude review of contractually-based decisions.  On the contrary, one of the benefits of abandoning the claim to a fundamental distinction between Scots and English law is that it would provide Scottish judges with a stronger conceptual foundation upon which to make a more active contribution to the development of judicial review – leading as well as following – than they have done in recent years.

In short, the time has come to consign West to the legal history books, along with Watt and Nicol.

Aileen McHarg is a Senior Lecturer in Law at the University of Glasgow.