Judicial review in the disciplinary context


26 October 2007

Judicial review is the inherent power of the Court to review the decisions of lower tribunals or bodies.  The use of judicial review has increased in recent years, not least in Scotland, where the devolution legislation and the Human Rights Act have rendered more decisions subject to review.  Not only are the decisions of public bodies subject to judicial review by the Court; any body exercising some form of disciplinary or delegated power in Scotland can ultimately be faced with having their decision challenged in court.  The category of body open to review is narrower in England and Wales, but will still encompass certain regulators as well as other 'public' bodies.

Who can be subject to judicial review ?
In England and Wales, a distinction is drawn between "public" bodies and "private" bodies, in that it is, generally, only the decisions of public bodies that can be reviewed.  In Scotland, the test is whether there has been an exercise of "delegated authority" in relation to the person seeking to bring the challenge.  The Scottish test is in fact wider than the test applied in England and Wales and can encompass wholly private bodies as well as public authorities.  For example, the rules and constitution of a golf club normally entrust some disciplinary powers to a Board or management committee, which can be exercised in relation to the golf club members.  In Scotland then, a club member against whom those powers are exercised could have recourse to judicial review if he wished to challenge the decision of the committee or board in relation to him.  The same analogy would in principle apply to a professional regulatory body, whose disciplinary functions are exercised by means of delegated authority, whether under statute or in terms of its constitutional rules/bye-laws.

Notwithstanding the differences between England and Wales and Scotland in terms of this initial test, however, the practical tests and requirements of judicial review are otherwise substantially the same in both jurisdictions.

When can you review a decision ?
Recourse to judicial review is available only after the individual concerned has exhausted any rights of appeal he may have had.  Thereafter, he must demonstrate standing, which in broad terms requires that he has an appropriate interest in the outcome (in Scotland,the test is more specifically and narrowly defined as requiring both 'title' - a legal right - and 'interest').  Once he has satisfied that test, the Court is required to hear the case for judicial review, subject to the time limits for raising an action.  These time limits are much shorter, and stricter, in England and Wales than they are in Scotland.  Judicial review is before the High Court (in Scotland, the Court of Session). 

What is the extent of the review ?
In hearing a petition for judicial review, the Court can assess whether the original decision taken was within the decision-maker's powers, whether due process was followed, and whether the decision was "unreasonable". 

The first part of the test will involve consideration of whether the regulator's decision was within the scope of its powers.  Due process will require, in essence, that the procedure used to reach a decision was fair; for example, did the respondent have notice of the charges against him, an opportunity to respond to the charges and be heard, and a reasonable period of time in which to do this?  The third test of "unreasonableness" is generally accepted as applying a high threshold.  To satisfy the Court that a decision is unreasonable, it is necessary to demonstrate that the decision is, in the classic formulation, "so unreasonable that no reasonable regulator could have come to it." 

It is therefore important to emphasise that judicial review should be seen, not as an appeal, but principally as a challenge to the way in which a decision has been reached.  In the event that the judicial review is upheld, this will usually result in the case being transferred back to the regulatory body for further/fresh consideration.

Professional regulatory bodies exercise their regulatory functions against the background of the possibility of judicial review.  Judicial review can be an expensive process, which can also provide unwanted and damaging publicity.  It is important for regulators to be mindful of the wider judicial context in which their disciplinary decisions and processes may be reviewed.  Proper auditing of procedures, and training of panel members, can go a long way in mitigating exposure to successful judicial review.

Paul Reid