Judicial Review to Prevent Unfair Standards Commission Hearings and Limits on Excluding Relevant Evidence

Introduction

In Petition of Fiona Higgins for Judicial Review of decisions of the Standards Commission for Scotland ([2026] CSOH 79, Outer House, Court of Session, Lord Sandison, 21 August 2026), a councillor (“the petitioner”) sought judicial review of two procedural decisions of the Standards Commission for Scotland (“the Commission”). The Commission had refused to accept a number of documents as productions for use at a forthcoming hearing under section 16(b) of the Ethical Standards in Public Life etc (Scotland) Act 2000 (“the 2000 Act”).

The underlying conduct issue arose from the petitioner reposting a journalist’s story on “X” and adding critical commentary about a senior council officer (“Mr Booth”), which prompted a complaint alleging breaches of the Councillors’ Code of Conduct (courtesy/respect; bullying/harassment; not undermining employees in public; compliance with councillor/employee relations protocol).

The judicial review raised two central questions:

  • Alternative remedy / competency: whether the petition was barred because the 2000 Act provides an appeal to the Sheriff Principal (section 22) after a finding/sanction.
  • Fairness and evidential relevance: whether the Commission unlawfully excluded documents said to be relevant—particularly given the petitioner’s reliance on Article 10 ECHR (freedom of expression) in defending the “X” post.

Summary of the Judgment

  • The petition was competent. The court held that requiring the petitioner to proceed through an allegedly unfair hearing and only then appeal would not be an effective alternative remedy for the specific mischief complained of (the risk of an unlawful/unfair hearing).
  • Article 6 was not decisive. Lord Sandison considered that participation as an elected councillor is, in principle, a “civil right” for Article 6 purposes, but held that the common law already imposes an equivalent duty on tribunals to examine parties’ submissions and evidence.
  • Partial reduction granted. The Commission acted outwith lawful powers in excluding certain arguably material documents. The court reduced the refusal decisions insofar as they excluded documents 2, 3, 4, 7, 8, 9 and 10. The refusals of documents 1, 5, 6, 11, 19 and 20 were upheld.
  • Commission’s “relevancy discretion” is not unlimited. Relevancy is ultimately a question of law; a procedural discretion under section 17(1) cannot justify excluding evidence that is clearly relevant to a matter requiring determination.

Analysis

1) Precedents Cited

A. Alternative remedy and the “last resort” nature of judicial review

  • British Railways Board v Glasgow Corp 1976 SC 224 and Tehrani v Argyll and Clyde Health Board (No 2) 1989 SC 342: relied upon for the orthodox Scots formulation—where statute provides an effective review route, judicial review is ordinarily unavailable, subject to “exceptional circumstances”. Lord Sandison accepted the lineage but scrutinised whether the statutory route actually addressed the mischief.
  • McCue v Glasgow City Council [2014] CSOH 124, 2014 SLT 891 (and its subsequent applications in Moore, Petitioner [2015] CSOH 182 and McCue’s Guardian v Glasgow City Council [2019] CSOH 109, 2020 SLT 41; [2020] CSIH 51, 2021 SC 107): deployed by the respondent to argue the matter was one of competency. Lord Sandison treated McCue as authoritative on the general approach, but placed emphasis on the “effectiveness” of the putative alternative remedy.
  • Re McAleenon [2024] UKSC 31, [2025] AC 1362: used to support a more functionally-focused inquiry—does the alternative remedy address the particular wrong and provide the sought relief?
  • Niles v Judicial and Legal Service Commission [2026] UKPC 15: heavily influential. Lord Sandison adopted its framing that: (i) judicial review is last resort; (ii) an alternative remedy bars review only if effective and efficient; and crucially (iii) whether an effective remedy exists is a matter of judicial evaluation, not discretion. The court used Niles to justify intervention before completion of disciplinary proceedings where the complaint is that the process itself is unlawfully unfair.
  • English authorities on pre-emptive intervention: R (Redgrave) v Metropolitan Police Commissioner [2002] EWHC 1074 (Admin) and R (Ford) v Coventry Magistrates’ Court [2025] EWHC 843 (Admin), [2025] 4 WLR 55 (with R (Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1800 (Admin) and R v Hereford Magistrates’ Court, Ex p Rowlands [1998] QB 110 in the background): treated as persuasive illustrations that forcing a party through an unfair hearing and only then appealing is not an “effective” remedy. Lord Sandison expressly agreed with the core logic from Redgrave.
  • Kennedy, Petitioner 1988 SCLR 149: cited as an example where practical inadequacy/delay in statutory review can justify resort to the supervisory jurisdiction. Lord Sandison treated this as relevant in principle but not determinative on the facts (the case was at a pre-sanction stage).
  • “Ouster” and supervisory jurisdiction: R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] AC 491 appeared in submissions to reinforce that supervisory jurisdiction is not displaced absent clear statutory language. Lord Sandison’s reasoning ultimately turned less on ouster and more on the ineffectiveness of the section 22 appeal at the pre-hearing stage.
  • Conceptual framing: Dante v Assessor for Ayr 1922 SC 109 (historical origin of the “no recourse if statutory review available” idea); Eba v Advocate General [2010] CSIH 78, 2011 SC 70 (supervisory jurisdiction principles); R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin), [2010] 2 WLR 1012 (discussion of the slippery boundary between jurisdiction and discretion); Moss’ Empires Limited v Assessor for Glasgow 1917 SC(HL) 1 (classic statement of the supervisory function). Lord Sandison used these to re-emphasise that the “alternative remedy” bar is best understood through the lens of preventing failures of legality by inferior bodies.

B. Article 6 and common law procedural fairness

  • Van de Hurk v The Netherlands (1994) 18 EHRR 481: relied on for the proposition that a tribunal must properly examine submissions, arguments and evidence. Lord Sandison held that Scots common law imposes an equivalent duty, making Article 6 unnecessary for the outcome.
  • Professional discipline comparators cited by the petitioner— Tehrani v United Kingdom Central Council for Nursing Midwifery and Health Visiting 2001 SC 581, Le Compte, Van Leuven and De Meyere v Belgium (1982) 4 EHRR 1, Janik v Standards Board for England [2007] EWHC 835 (Admin), General Medical Council v Pembrey [2002] EWHC 1602 (Admin), Selvarajan v General Medical Council [2008] EWHC 182 (Admin)— were found of limited assistance because elected office is not analogous to practising a profession for a livelihood. Still, Lord Sandison accepted (as a matter of principle) that elected participation is a “civil right”.

C. Relevancy, natural justice, and reasons

  • R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 and Greater Glasgow Health Board v Chair of the Scottish Hospitals Inquiry [2025] CSOH 12, 2025 SC 227: used to ground the presumption of fairness in the exercise of statutory powers. Lord Sandison accepted the general fairness duty, then focused on relevancy as a legal question.
  • British Oxygen Co Ltd v Board of Trade [1971] AC 610: cited in submissions as “shutting ears”/fettering discretion. While the court did not frame the decision primarily as fettering, it did stress that exclusion of relevant material can unlawfully deprive a party of a fair opportunity to be heard.
  • Irrationality / intensity: Asim v Secretary of State [2018] CSIH 41, 2018 SLT 1251 and R v Parliamentary Commissioner for Administration, ex parte Balchin (No.1) [1998] 1 PLR 1, plus the petitioner’s reference to Bank Mellat v HM Treasury (No 2) [2013] UKSC 39. Lord Sandison did not decide the case on classic irrationality, instead treating it as exceeding lawful limits of exclusion given relevance.
  • Reasons: Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 and Brechin Golf and Squash Club v Angus District Licensing Board 1993 SLT 547 framed the petitioner’s reasons challenge. Lord Sandison indicated he would have found the reasons inadequate under Wordie Property Co Ltd, but considered it unnecessary to decide that once the lawful result on admissibility was clear. The respondent’s reliance on West Lothian Council v Scottish Ministers [2023] CSIH 3 and Uprichard v Scottish Ministers [2013] UKSC 21 was acknowledged as to context and proportionality of reasons.

2) Legal Reasoning

A. Competency: why section 22 appeal was not an “effective alternative remedy”

The court identified the “mischief” as the risk of being subjected to an unlawfully unfair hearing due to pre-hearing exclusions of evidence. Because section 22 appeals lie only after a section 18 finding (and any sanction under section 19), insisting the petitioner proceed to a potentially defective hearing and only then appeal would not prevent the complained-of wrong.

The court adopted the practical logic articulated in Niles v Judicial and Legal Service Commission [2026] UKPC 15 and R (Redgrave) v Metropolitan Police Commissioner [2002] EWHC 1074 (Admin): a remedy that only operates after the allegedly unfair process has run its course may be legally available but not “effective” where the right asserted includes a right not to undergo an unfair hearing at all.

B. Article 6: recognition in principle, but no greater protection than common law

Lord Sandison expressed the view that participation as an elected member of a representative assembly is, in principle, a civil right under Article 6. However, he held the case did not turn on Article 6 because Scots common law already requires tribunals to properly examine parties’ submissions and evidence; Article 6 added no material content for present purposes.

C. Relevancy as a legal constraint on the Commission’s procedural discretion

The Commission relied on section 17(1) (“procedure ... as the Commission determines”) and its guidance stating that relevancy is a matter for the panel’s discretion. Lord Sandison drew an important distinction:

  • Procedure is discretionary (e.g., when and how relevancy is decided).
  • Relevancy is ultimately a question of law, and a tribunal cannot exclude evidence that is clearly relevant to a matter requiring determination.

He held that the guidance overstated the Commission’s lawful room for manoeuvre (criticising paragraph 1.3’s suggestion of exclusive discretion).

D. Practical “ground rules” for evidential exclusion where Article 10 is in play

The court articulated structured considerations when a tribunal considers excluding arguably relevant material:

  • Open justice / legitimacy: where there is real doubt about relevance, it should tend to be resolved in favour of admission (subject to proportionality), to avoid any appearance of pre-judgment and to support confidence that justice is “seen to be done”.
  • Proportionality must be explained: if exclusion is based on time/cost/delay or peripheral value, the balancing exercise should be intelligible.
  • Article 10 context requires close attention to background: since there was no dispute Article 10 was engaged, assessing whether restricting the petitioner’s speech is justified and proportionate necessarily requires careful evaluation of background circumstances informing the impugned expression.

E. Document-by-document outcome (what was wrongly excluded)

Applying those principles:

  • Properly excluded (refusal upheld):
    • Document 1 (duplicate screenshot already in productions)
    • Documents 5 & 6 (very lengthy budget proposal documents; exclusion justified on proportionality where narrower documents captured the relevant points)
    • Document 11 (email exchange about “deliverability” of the budget; not shown to connect to the specific allegation in the “X” post)
    • Documents 19 & 20 (collateral criticism of Mr Booth unrelated to the complaint; outside remit)
  • Wrongly excluded (reduction granted):
    • Document 2 (email chain among officials on how to present the budget)
    • Document 3 (enclosures on the effect of teacher cuts on government grant funding)
    • Document 4 (email on budget impacts)
    • Documents 7–10 (education-specific templates/estimates and councillor-facing budget document shortly before the budget)

These documents were found to be of “arguable materiality” (and in several instances “obvious potential relevance”) to the background, seriousness, and factual basis informing the petitioner’s expression—matters likely to bear on the proportionality analysis under Article 10.

3) Impact

  • Earlier access to judicial review in standards/disciplinary processes: The decision strengthens the ability of parties to challenge procedural rulings before a hearing where the statutory appeal only lies after an outcome, and where the complaint is that the process will itself be unlawfully unfair. The key hinge is whether the later appeal is effective against the complained-of mischief.
  • Relevancy constraints are legal, not purely discretionary: Public-law tribunals in Scotland may treat evidential management as procedural, but cannot lawfully exclude evidence that is clearly relevant to what they must decide. Guidance documents asserting broad “panel discretion” will be read subject to legal limits.
  • Heightened sensitivity where Article 10 is engaged: Without creating a bespoke test, the judgment signals that restricting political/public-interest expression by elected officials will commonly require fuller engagement with contextual material.
  • Reasons and proportionality: Although not decisive, the court’s observations indicate that “relevance/proportionality” labels without a discernible balancing explanation risk failing the Wordie Property Co Ltd standard—particularly when the tribunal admits broad affidavit evidence but excludes supporting documents.

Complex Concepts Simplified

  • Judicial review (supervisory jurisdiction): a Court of Session procedure to keep public bodies and tribunals within the lawful limits of their powers and to ensure fair procedure.
  • Alternative remedy: if Parliament provides a suitable appeal/review route, judicial review is usually not available. But the alternative must be effective for the specific problem raised.
  • Competency: in Scots practice, sometimes expressed as whether the court has power to entertain the case at all; here, the court held the “alternative remedy” did not bar the petition.
  • Reduction: the Scots remedy that sets aside (quashes) an unlawful decision.
  • Relevancy (evidence): whether material has a reasonably direct bearing on an issue the tribunal must decide; it is ultimately a legal concept, even if tribunals manage it procedurally.
  • Article 10 ECHR: protects freedom of expression; interference must be prescribed by law, pursue a legitimate aim (e.g., reputation/rights of others), and be necessary and proportionate.
  • Article 6 ECHR: requires a fair hearing in determining civil rights/obligations; the court held the common law already required proper examination of evidence/submissions.

Conclusion

[2026] CSOH 79 establishes a clear, practical point in Scottish public law: where a party credibly complains that a tribunal’s pre-hearing procedural rulings will make the hearing unlawfully unfair, a statutory appeal available only after the final decision is not necessarily an “effective alternative remedy”, and judicial review may be competent to prevent the unfairness occurring.

On the merits, Lord Sandison reaffirmed that while the Standards Commission controls its procedure under the 2000 Act, it cannot treat evidential relevance as a matter of unconstrained discretion. In cases engaging Article 10, tribunals should be slow—absent a clear proportionality justification—to exclude contextual materials bearing on the factual basis and seriousness of the matter about which expression was made.