Petition Thomas Sheridan for Judicial Review (Court of Session)

Factual and Procedural Background

The Petitioner, a former member of the Scottish Parliament with a prior conviction for perjury resulting in imprisonment, completed qualifications in law and social work. Social work is a regulated profession requiring registration with the Scottish Social Services Council (SSSC). Following a fitness to practise hearing, the Petitioner was granted registration without conditions despite his conviction. The Petitioner applied for various social work positions with the Respondent, a local authority responsible for social services in Glasgow, but was repeatedly informed that his applications would not be progressed due to concerns arising from his past conviction. The Petitioner sought judicial review challenging the Respondent's decision to exclude him from employment as a social worker, alleging unlawfulness on grounds of irrationality, procedural impropriety, and unlawful fettering of discretion. The Respondent contended that the petition was incompetent as decisions about employment offers fall outside the court’s supervisory jurisdiction and defended the lawfulness of its recruitment discretion.

Legal Issues Presented

1. Whether the Respondent’s decision to exclude the Petitioner from consideration for social work employment was lawful or unlawful, specifically addressing claims of irrationality, procedural impropriety, and fettering of discretion.
2. Whether the petition for judicial review was competent, given the nature of the dispute as relating to a potential employment contract and the scope of the court’s supervisory jurisdiction.

Arguments of the Parties

Petitioner's Arguments

• The Respondent’s decision was irrational because the Petitioner had been assessed as fit to practise by the SSSC after a detailed hearing, had completed social work placements successfully, and complied with all disclosure requirements.
• The Respondent failed to provide adequate and intelligible reasons for its decision, particularly failing to explain what constituted the "unacceptable level of risk" referenced in its correspondence.
• The Respondent unlawfully fettered its discretion by adopting a blanket policy excluding the Petitioner from all social work roles, contrary to its statutory duty to recruit fairly and reasonably.
• The petition was competent as it challenged a policy decision by the Respondent prior to any contractual relationship, distinguishing it from precedents involving disputes arising from existing contracts.

Respondent's Arguments

• The petition was incompetent because decisions about whether to offer employment fall within the realm of private law and contractual discretion, not amenable to judicial review under the court’s supervisory jurisdiction.
• Employers, including public sector employers, have broad discretion in recruitment decisions, provided they comply with anti-discrimination legislation, and are not obliged to provide reasons to unsuccessful applicants.
• The Respondent’s concern regarding reputational risk, particularly given the Petitioner’s conviction for perjury and the nature of the criminal justice social work role, was reasonable and not irrational.
• The letters sent to the Petitioner provided adequate reasons for the decision, and the Respondent did not fetter its discretion because it remained open to considering future applications subject to material changes in circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Council of Civil Service Unions & Others v Minister for the Civil Service [1985] 1 AC 374	Standard for irrationality in judicial review; decision so illogical no sensible person could have made it.	The court applied the high threshold for irrationality and found the Respondent's decision was not irrational given the nature of the conviction and recruitment discretion.
United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831	Adequacy of reasons in administrative decisions.	Referenced in assessing whether the Respondent's letters provided adequate and intelligible reasons.
South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953	Adequacy of reasons in administrative decisions.	Used to support the requirement for intelligible reasons in administrative decision-making.
R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531	Adequacy of reasons in administrative decisions.	Guidance on the nature and extent of reasons required in public law decisions cited in evaluating the Respondent's letters.
British Oxygen Co Ltd v Minister of Technology [1971] AC 610	Unlawful fettering of discretion by rigid policy application.	Referenced to assess whether the Respondent had unlawfully fettered its discretion by adopting a blanket ban.
West v Secretary of State for Scotland 1992 SC 385	Scope and limits of supervisory jurisdiction; contractual disputes not amenable to judicial review.	Applied to determine that employment decisions relating to contract offers are generally outside judicial review.
Redcroft Care Homes Ltd Petitioners [2024] CSIH 34; [2023] CSOH 95	Reaffirmed that disputes arising from contractual relationships are not normally subject to supervisory jurisdiction.	Distinguished by the Petitioner but ultimately applied by the court to dismiss the petition as incompetent.
Abundance Investments Ltd v Scottish Ministers [2020] CSOH 12	Discussion on judicial review limitations in contractual contexts.	Supported the Respondent’s argument on the limited scope of supervisory jurisdiction in employment matters.

Court's Reasoning and Analysis

The court first addressed the competency of the petition, emphasizing that the supervisory jurisdiction applies only to decisions made under a legally circumscribed power and does not extend to all public body decisions. The power exercised by the Respondent related to employment decisions under the Local Government (Scotland) Act 1973, section 64, which permits discretion in staffing. The court relied on established authority that employment-related decisions, particularly those concerning contract offers or refusals, fall outside judicial review as they are governed by private law contractual principles.

The Petitioner’s argument that no contract existed and thus the supervisory jurisdiction should apply was rejected. The court reasoned that the context was an employment situation where parties are free to decide on contractual engagement, and allowing judicial review in such cases would open the door to widespread challenges to public sector recruitment processes.

On the merits, the court acknowledged the high threshold for irrationality and found the Respondent’s decision was not irrational. Registration with the SSSC sets a minimum standard but does not guarantee employment; employers may impose additional criteria. The Petitioner’s prior conviction was a relevant factor for the Respondent, especially given the nature of the roles applied for.

Regarding the adequacy of reasons, the court found the Respondent’s letters, although somewhat unclear, sufficiently conveyed the essential reasoning that the prior conviction was a significant bar to employment. The requirement for reasons depends on context and statutory procedures, and here the Respondent voluntarily provided explanations beyond what was strictly required.

On the fettering of discretion claim, the court found no unlawful fettering. Although the August letter suggested a refusal to consider future applications, the subsequent letter clarified that future applications would be considered if circumstances materially changed. Thus, no rigid, inflexible policy was adopted.

Holding and Implications

The court SUSTAINED THE RESPONDENT'S FIRST PLEA-IN-LAW AND DISMISSED THE PETITION AS INCOMPETENT.

The direct effect of this decision is that the Petitioner’s judicial review challenge to the Respondent’s refusal to consider him for social work employment is dismissed on grounds of incompetency, reaffirming the principle that employment decisions regarding contract offers are generally outside the supervisory jurisdiction of the Court of Session. No new precedent was established beyond the application of existing authority confirming the limits of judicial review in employment contexts involving public bodies.