Judicial Review as a Pigeon-hole

There is of course a solid case for abolishing judicial review in Scotland - let me persuade you.

Our problem is that, with the greatest respect, the nearest one comes to a justification for the procedural invention of judicial review by the Dunpark Committee in 1987 was as a marketing exercise, to give an impression of not falling behind England. There has never been a need for specific rules for ‘judicial review’ as such  - only for means of distinguishing between cases which could and should proceed on a relatively faster track, and those which cannot or should not. Judicial review as devised by the Committee does embrace those cases which could - because they can be resolved on the papers alone - and should - because, in general, the resolution of disputes about matters of public law has a better first claim on judicial time than purely private disputes. But of course what we got was a procedure which honours neither of those distinctions: it extends to private-law disputes (membership of associations, clubs, unions, churches, and even some employment disputes); and it extends to disputes which can require extensive proof. The result is what Lord Prosser called the paradox of rendering competency dependent on choice of pigeon-hole - i.e., on what label is at the head of the writ - in the finest traditions of … mediaeval English law - our escape from which Lord Cooper and T. B. Smith would have had us celebrate. (Competency should of course be simply a question of whether the court has the power to grant the remedy.) The pigeon-hole was designed without a unifying principle - pace Matthew Clarke’s and Lord Hope’s subtle but widely-doubted attempt to reverse-engineer a principle onto the pigeon-hole, in West. The result has been 33 years’ of time and effort spent on a completely artificial question - whether or not an application should properly be by way of judicial review - which simply diverts time and effort from the real question: has the law been broken? Paradoxically, of course, in West Lord Hope’s narrative of the historic development of the law illustrates how well we had got on for centuries without judicial review: half the judicial-review petitions that we have ever seen cite the grounds in Wordie, but it didn’t take judicial review to give us the principles stated by Lord Emslie. Of course the belated bolt-on of remits from judicial review to ordinary procedure and vice versa mitigates the problem a little - but if you abolished the problem, then you could ditch the mitigation too - and for once, actually make the Rules of Court simpler (there's a thought). 

I pitched up at a Commercial Preliminary Hearing back in c. 1997 for a public-authority defender, and objected that the pursuer’s request for a remedy plainly invoked the supervisory jurisdiction. Lord Penrose, channeling William Prosser, fixed me with a steely eye as he said “That, Mr. Upton, is an objection of the utmost sterility. I sustain your plea and dismiss this action”. And a month later we were dealing with the judicial review. 

George Penrose was completely right: the definition of the scope of judicial review sired out of West by the Dunpark Committee is sterile and unnecessary. All you need is one portal to the court (call it, say, signeting a summons) and a sift - a sift to decide whether (a) the case concerns a matter of public interest which all things being equal should be fast-tracked, and (b) it can be dealt with on the papers, so it can indeed go to the fast-track. Keep the need for permission where the defender is a public authority, if you want to. Then you could say good-bye to West and all its children, and to a lot of the debate in Eba - and get down to arguing about whether the law has been broken, instead of debating how many angels can dance on the head of a tripartite relationship, or any other wholly Act-of-Sederunt created problem. How about we abolish judicial review - remembering it was purely a novelty of court procedure (and, as an Englishman, let me point out who it was aping … ) - and we all get on with debating (enforcing, improving, maybe even simplifying … ) our substantive public laws?