Amendments 139 and 143 would have the effect of removing a significant element of the reforms suggested in Lord Gill’s Scottish civil courts review. Amendment 139 would remove any changes that the bill makes to the judicial review procedure, which would mean that not only would there be no statutory time limits on applications, which is what we have just been discussing, but even the most unmeritorious cases would have to proceed to a hearing on the merits.
I find it strange that amendment 139 should be lodged and I am not entirely clear what is behind it. All parties accepted in general Lord Gill’s “Report of the Scottish Civil Courts Review” when it was published. His proposals on judicial review formed a significant part of that review, and the bill will implement his recommendations. However, Alison McInnes now proposes amendments that would remove those provisions in their entirety. The result of those amendments would be that judicial review would continue on the basis of the common-law plea of mora, taciturnity and acquiescence, which Lord Gill considered to be not particularly
“well-suited to a procedure designed to provide a speedy and effective remedy to challenge the decisions of public bodies.”
There is a public interest in judicial review challenges being made promptly and resolved quickly. People should be able to challenge the decisions of public authorities, but they should also be able to rely on them. An appropriate balance has to be struck, and we consider that the way to do that is through a time limit.
The time limit provision in the bill is drafted in a way that is designed to provide fairness to applicants while reflecting the public interest in having settled decision making. The bill also recognises that there might be occasions when that time limit needs to be extended, so the court is empowered with discretion to do that if it considers it equitable, given all the circumstances. Again, we referred to that earlier.
Three months was chosen as being sufficient in the vast majority of cases and is a time limit that has operated satisfactorily in England and Wales for some considerable time. The Scottish Government consulted on that time limit and a majority of the respondents were in favour.
During stage 1, anxieties were raised about whether legal aid could be arranged within that timescale, but the evidence of Lindsay Montgomery, the chief executive of the Scottish Legal Aid Board, was that it would not present a problem. Indeed, an application could be made under the legal aid special urgency provisions.
I will say more about time limits when I deal with amendment 125, in the name of Elaine Murray, but first I must address the other reform that would be lost were Alison McInnes’s amendments to be agreed to: the introduction of a permission stage, which was another of Lord Gill’s recommendations. Petitions for judicial review occupy a disproportionate number of sitting days. The permission to proceed stage would remove those cases that are effectively unarguable, with the safeguard that an applicant who is refused permission has a right of appeal to the inner house.
Amendment 139 would mean that unmeritorious claims would proceed to a hearing on the merits, taking up valuable court time at a cost to the public purse. In addition, without the permission stage, judicial review can become a weapon used to delay development projects, which is something that we have just been discussing. We have already heard from Margaret Mitchell, in the debate on the previous group of amendments, about the way in which judicial review applications could be abused. Although her proposed solution, in our eyes, went too far, she highlights a real issue, to which the introduction of a permission stage, as recommended by Lord Gill, is a proper part of the response.
To summarise, amendments 139 and 143 would mean that there would be no reform to judicial review. I remind the committee that Lord Gill devoted an entire chapter of his report, which was welcomed by this Parliament, to the improvement of the judicial review process. He has said of the bill:
“Proposed new section 27A of the 1988 act, which is in section 85 of the bill, seems to be concisely and clearly expressed, which leaves no one in any doubt of what is required of them if they petition for judicial review. I cannot see any way in which it could be improved on.”—[Official Report, Justice Committee, 22 April 2014; c 4547.]
It would certainly not be improved on by being omitted from the bill, and I ask the member not to press her amendments.
The effect of amendment 125 would be to change the point at which the clock starts ticking for the purposes of the judicial review time limit in section 85. The bill gives that point as the date on which the grounds giving rise to the application first arise—for instance, the date on which the decision under challenge was taken. Amendment 125 changes that to the date on which the applicant first had knowledge of the grounds giving rise to the application.
The current test in the bill is an objective test. The grounds giving rise to the application are objective circumstances, such as the date on which a decision is taken, which will be known to the decision maker and may readily be ascertained by a court. However, it is important to note that the current test in the bill has been drafted in such a way as to allow the court to apply the principle of fairness in determining from when a particular time limit should run.
The House of Lords has held that, under the equivalent long-standing test in England and Wales, which is drafted in similar terms, the time limit will not start to run until the person affected by a decision would be likely to be aware of that decision. The Court of Session will, of course, find such an approach highly persuasive. Although it would not necessarily be bound by it, it would be likely to accept the decision.
Elaine Murray’s test would, however, be a subjective one. It would depend on the actual knowledge of each applicant, and it could well lead to legal arguments about when the individual applicant had the requisite knowledge. That would greatly reduce the certainty of the time limit, as even after three months have passed from the date on which a decision was publicised, it would be possible for an application to be brought by a person who was, for whatever reason, unaware of it until more recently.
The aim of the section 85 time limit is to balance the need for access to judicial review with the interests of certainty in decision making. To take an everyday example of the latter interest, a person who is granted planning permission for the extension of her house should, at some point, be entitled to build the extension without fear that the decision to grant that permission will be quashed on judicial review. That interest in certainty would be undermined by adopting Elaine Murray’s test. It should also be noted that there is already flexibility in section 27(1)(b) for the court to extend the time limit, where equitable, having regard to the circumstances. That gives further comfort to claimants that, where good reasons arise, the court is fully empowered to allow claims to be made out of time. I hope that I have been able to give some comfort to Elaine Murray on this point, and I ask her not to press amendment 125.
The Government amendments are relatively minor and technical. Amendments 62 and 63 are minor drafting amendments that seek to clarify how the time limits are expressed in proposed section 27A(2) of the Court of Session Act 1988, as inserted by section 85 of the bill. They make it clear that any time limit that might be imposed by another enactment will apply only if it in fact ends before the three-month time limit applied under section 27A(1).
Amendment 65 seeks to introduce a time limit that was recommended by Lord Gill but which was inadvertently omitted from the bill as introduced. The bill permits an applicant who has been refused permission to proceed after an oral hearing to appeal to the inner house of the Court of Session against the refusal. The seven-day time limit that Lord Gill recommended for such an appeal is introduced in amendment 65.
Finally, amendments 114 to 117 are technical drafting amendments to the provisions inserted into the Tribunals (Scotland) Act 2014 by paragraph 24 of schedule 4 to govern the procedural steps that should be followed when the Court of Session remits a petition for judicial review to the upper tribunal for Scotland under section 57(2) of the 2014 act.
I urge the committee to support amendments 62, 63, 65 and 114 to 117 in the name of the cabinet secretary and not to support amendments 125, 139 and 143.
Phew!