Affirmation of Permission Stage Judicial Review Process under the Court of Session Act 1988: [2020] CSIH 36

Introduction

The case titled Reclaiming Motions by April Prior, Gordon Burns, and Joseph Millbank against the Scottish Ministers and the Lord Advocate ([2020] CSIH 36) was adjudicated by the First Division, Inner House of the Scottish Court of Session on June 30, 2020. The petitioners challenged the procedural requirements stipulated in sections 27B to 27D of the Court of Session Act 1988, specifically focusing on the necessity of an oral hearing when a request for a judicial review is refused by a Lord Ordinary. The core issue revolves around whether the current statutory provisions infringe upon the European Convention on Human Rights (ECHR) Article 6, which guarantees the right to a fair trial, including access to a court.

Summary of the Judgment

The Court of Session upheld the statutory framework established by sections 27B to 27D of the Court of Session Act 1988. The petitioners argued that these provisions contravened their rights under the ECHR by denying them an oral hearing and, consequently, a right of appeal when their requests for judicial review were refused. The Inner House, presided over by Lord Carloway, found that the legislation was compatible with Article 6 of the ECHR. The court emphasized that the permission stage serves as a filtration mechanism to prevent unmeritorious claims from burdening the judicial system, and the opportunities for oral hearings and appeals are preserved within the statutory framework. Consequently, the reclaiming motions filed by the petitioners were refused.

Analysis

Precedents Cited

The judgment extensively referred to several precedents to bolster its stance:

R (MD (Afghanistan)) v Secretary of State for the Home Department [2012]: Highlighted the importance of oral hearings in ensuring transparency and fairness.
R (Wasif) v Secretary of State for the Home Department [2016]: Emphasized that procedural safeguards like oral hearings are crucial for upholding justice.
Golder v United Kingdom (1979-80): Established that any restriction on the right to access courts must not impair its essence.
Saccoccia v Austria (2010): Clarified that an oral hearing is not always mandatory under Article 6, depending on case complexity.
Other cases such as Zubac v Croatia (2018), Delcourt v Belgium (1979-80), and Bhamjee v Forsdick [2004] were cited to discuss the proportionality and limitations of access rights.

Legal Reasoning

The court's legal reasoning was anchored on interpreting the statutory provisions within the framework of the ECHR:

Statutory Interpretation: The court examined sections 27B to 27D of the Court of Session Act 1988, discerning that these provisions do not mandate an absolute right to an oral hearing or appeal. Instead, they provide a structured process where an oral hearing can be requested under specific circumstances.
Compatibility with ECHR: The court assessed whether the statutory requirements infringed upon the right to a fair trial. It concluded that the filtration mechanism serves a legitimate aim of conserving judicial resources and preventing frivolous claims, thereby maintaining a proportionate balance between access and efficiency.
Procedural Safeguards: The provisions allow for a second review by a different Lord Ordinary, ensuring that decisions are not arbitrary and providing avenues for reconsideration, albeit not constituting a traditional appeal.

Impact

The judgment reinforces the existing procedural framework for judicial reviews within the Scottish legal system. It underscores the legitimacy of structured permission stages and limited opportunities for oral hearings and appeals as compatible with human rights standards. Future cases will likely adhere to this precedent, affirming that automatic oral hearings and appeals are not necessary if proportionality and procedural fairness are maintained. Additionally, it emphasizes the judiciary's role in interpreting statutes in a manner consistent with human rights obligations without undermining legislative intent.

Complex Concepts Simplified

Reclaiming Motions

A reclaiming motion is a procedural tool that allows a petitioner to challenge a previous judicial decision, typically seeking to reverse or modify that decision.

Permission Stage

This is a preliminary step in judicial review where a court determines whether a case has sufficient merit to proceed. It acts as a filter to prevent unsubstantiated claims from occupying judicial resources.

Lord Ordinary

A Lord Ordinary is a senior judge in the Scottish legal system who has the authority to make initial decisions on legal matters, including granting or refusing permission for judicial reviews.

Article 6 of the European Convention on Human Rights

Article 6 ensures the right to a fair trial, which includes the right to be heard, to have a public hearing, and to an impartial tribunal.

Reduction of Interlocutors

This refers to the court's power to remove or alter the roles of existing judicial officers (interlocutors) in ongoing or past legal proceedings.

Conclusion

The Court of Session's decision in Reclaiming Motions by April Prior, Gordon Burns, and Joseph Millbank reaffirms the procedural integrity of the judicial review process under the Court of Session Act 1988. By upholding the permission stage's structured approach, the court balanced the need for judicial efficiency with the protection of individual rights under the ECHR. This judgment delineates clear boundaries for petitioners seeking judicial reviews, emphasizing that while opportunities for oral hearings and appeals exist, they are not absolute rights but conditional procedures designed to maintain a just and efficient legal system.