Incoming Reforms to Judicial Review in Scotland
From the 22nd of September 2015, the procedures for judicial review in Scotland will change dramatically. The changes which are being introduced aim to ensure a speedy determination of petitions for judicial review, whilst also ensuring that unmeritorious petitions are sifted out at an early stage.
The impact of these changes will become clearer over time, but anyone that may become involved in a judicial review should take note of the incoming reforms. The main reforms include:
Three Month Time Limit
From 22 September 2015, an application for judicial review must be made within 3 months of the date on which the grounds giving rise to the application first arise. However, the court does have the power to allow a longer period of time if it considers it equitable to do so.
If the grounds that give rise to a petition for judicial review arise before 22 September 2015, the 3 month time limit for submitting the petition starts on 22 September. In other words, petitioners will have 3 months from 22 September 2015 to lodge the petition before the application is time barred.
The new rules also introduce a ‘Permission Stage’ to petitions for judicial reviews. Essentially, the court will need to first grant permission before a petition can proceed. Currently, petitioners do not require such permission of the court.
In order for the court to be satisfied that permission should be granted, the court must be satisfied that:
(a) The applicant has sufficient interest in the subject matter of the application; and
(b) The application has a real prospect of success
Following submission of the petition, the court will oblige the petitioner to serve the petition on all relevant parties. Those served with the petition must then notify the court if they intend to contest whether permission should be granted, or simply contest the petition.
The court is not obliged to have an oral hearing before making a decision on whether or not to grant permission. If permission is refused without a hearing, the petitioner can request an oral hearing to review the decision. Alternatively, if permission is refused at an oral hearing, the petitioner can appeal the decision to the Inner House of the Court of Session.
Any request for a review, or an appeal, must be made within 7 days of the decision to refuse permission.
Timetable for the Petition
Ultimately, the reforms aim to ensure the speedy determination of petitions for judicial review. In order to achieve this, the new rules include ambitious timescales for each stage of the petition. For instance, when permission is granted, the court will fix:
(a) A date for the substantive hearing, which cannot be more than 12 weeks from the date permission is granted; and
(b) A date for a procedural hearing, which cannot be more than 6 weeks from the date permission is granted.
These time scales are much shorter than can currently be expected.
Further, the Lord Ordinary who deals with the petition will be much more involved in the process than at present. This additional judicial case management is intended to focus and control the process to a greater degree than it is at present. The aim is to ensure that time is not wasted and that the parties are prepared to proceed to the substantive hearing on schedule.
Public Interest Intervention
The new rules also include amended provisions for Public Interest Interventions.
These new rules apply to those who were not served with the petition, and are not directly affected by the issues relevant to the petition. These persons may apply for leave to intervene in the decision to grant permission, in a petition where permission has been granted, or in an appeal in connection with a Judicial Review.
The court must only grant leave to intervene if satisfied that:
(a) the proceedings raise a matter of public interest;
(b) the issue in the proceedings the applicant wishes to address raises a matter of public importance;
(c) the propositions the applicant wants to advance are relevant and are likely to assist the court; or
(d) the intervention will not unduly delay or otherwise prejudice the rights of the parties, including their potential liability in expenses.
An Intervention is made by written submission that must not exceed 5,000 words. In exceptional circumstances the court can allow longer submissions or for the intervener to make an oral submission.
The new rules for petitions for judicial review should ensure that the process is much quicker and runs more smoothly than at present. Those in industries which are often involved in judicial reviews can take some comfort in the knowledge that potential petitioners will have a reasonably short window to submit petitions, and that those petitions should be dealt with within 4 months. At present, judicial review proceedings can take far longer to conclude. In addition, the new requirement for permission to be granted should assist in ensuring that time and money are not wasted on judicial reviews which are totally without merit.