5 - The Influence of English Judicial Review on Scots Judicial Review

Summary

The law of judicial review in Scotland both resembles, and is distinctive from, its English counterpart. The grounds of review are largely aligned in the two jurisdictions, but there are substantial differences in the scope and availability of review. Scots judicial review is highly distinctive in being doctrinally centred on confinement to jurisdiction without overt resort to notions of public power. This is shown to result from the way in which judicial review has evolved in Scotland over several centuries. Related to those differences is distinctiveness in the remedies that are available, with no discrete class of public law remedies and no comparative system of prerogative orders or writs. Nevertheless, English law has served as a powerful force of convergence, and recent reforms have seen Scots judicial review increasingly aligned with its English counterpart on procedural matters. This occurred in relation to the rules on standing, and the introduction of both a time limit and a leave stage, neither of which had previously featured in Scots judicial review procedure. Reasons for both resemblance with, and distinctiveness from, English law are considered, it being concluded that neither convergence nor divergence should be adopted for their own sake.