Amenability of regulatory decisions to judicial review – England v Scotland

Parties facing adverse decisions of ‘non-public’ UK regulatory bodies may be able to obtain judicial review of those decisions in Scotland in circumstances where (as a recent case illustrates) judicial review of those decisions is unavailable in England.

9 May 2024

People pointing to paper

As is well known, the grounds for judicial review are identical in England, Wales and Scotland, and authorities from each jurisdiction are routinely cited as authorities in other jurisdictions.  

However, that does not extend to the scope of judicial review and its application in practice. This means that it cannot be assumed that a decision of the English courts on whether certain decisions/decision-makers are ‘amenable’ to judicial review would be followed in Scotland, and in many cases, such decisions would definitely not be followed in Scotland. 

This is often referred to as the public/private law distinction which Scotland broadly rejects, allowing for example, the Scottish courts to judicially review the decision of golf clubs, and the English courts to refuse to judicially review the Conservative Party on the basis it is not a public body and does not exercise public functions.

A recent English case is a good example of English judicial decision-making that would not be adopted in Scotland.  

In Ltd v Financial Ombudsman Service Ltd AC-2022-LON-003486 His Honor Judge Siddique considered whether decisions taken by the Financial Ombudsman to recommend compensation payments under a voluntary non-statutory compensation scheme (“voluntary scheme”), were amenable to judicial review.  

The compensation decisions (£500 later increased to £750) followed from consumer complaints which had been dealt with under statutory provisions (“statutory scheme”). argued that the voluntary scheme decisions could be judicially reviewed because: (1) ex gratia schemes (e.g. Government compensation for miscarriages of justice) have been subject to judicial review, and/or (2) the voluntary scheme decisions had a sufficient public flavour or element, because they related to previous complaints made under the statutory scheme.  

The court disagreed. Firstly, ex gratia compensation payments following miscarriages of justice were Government introduced prerogative compensation schemes. These were in “stark contrast” to the voluntary scheme which did not involve the exercise of governmental functions. Secondly, the relationship between the voluntary scheme decisions and prior statutory scheme decisions did not provide a sufficient public law element for the voluntary scheme decisions to be amenable to judicial review. His Honor Judge Siddique decided that the nature of the decisions taken under the voluntary scheme could not – logically – change because of their nexus with the prior statutory scheme.

In Scotland, the question of amenability is generally framed around competency, and the scope of the supervisory jurisdiction of the Court of Session. It is safe to say that the analysis conducted in would not be adopted in the Scottish courts, and may have been able to obtain a hearing in Edinburgh on the same facts, and allowed to argue grounds of judicial review identical north and south of the border.