West v Secretary of State for Scotland
Encyclopedia
West v Secretary of State for Scotland 1992 SC 385 (IH),1992 SLT 636, (reported as West v Scottish Prison Service, 1992 SCLR 504) is the leading case on judicial review in Scotland
and sets out in detail the present law. Unlike the position in England, the Court of Session
does not require that the decision complained of should have any public law
element in order to be reviewable:
Crucially, in Scots administrative law
the competency of an application to the supervisory jurisdiction
The law of Scotland is therefore different from the law of England on this matter: see, for England, R v Chief Rabbi of the United Hebrew Congregations of Great Britain ex parte Wachmann [1992] 1 WLR 1036, in which Simon Brown J held that a decision of the Chief Rabbi to terminate a rabbi’s employment was not reviewable: to attract the court’s supervisory jurisdiction, there must be ‘not merely a public but potentially a governmental interest in the decision-making power in question.’ [at page 1046, emphasis added].
Judicial review in Scotland
Judicial review in Scotland functions within the framework of Scots administrative law.The power of judicial review of all actions of governmental and private bodies in Scotland is held by the Court of Session...
and sets out in detail the present law. Unlike the position in England, the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
does not require that the decision complained of should have any public law
Public law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
element in order to be reviewable:
… the Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument
[per Lord President Hope at page 650, emphasis added].
The public or private nature of the inferior body or tribunal is not decisive, nor is it necessary to enquire whether the decision of the inferior body or tribunal is administrative in character. The essential point is that a decision-making function has been entrusted to that body or tribunal which it can be compelled by the court to perform… The essential feature of all these cases is the conferring, whether by statute or private contract, of a decision-making power or duty on a third party to whom the taking of the decision is entrusted but whose manner of decision-making may be controlled by the court.
Crucially, in Scots administrative law
Scots administrative law
Scots administrative law governs the rules of administrative law in Scotland, the body of case law, statutes, secondary legislation and articles which provide the framework of procedures for judicial control over government agencies and private bodies....
the competency of an application to the supervisory jurisdiction
… does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review...
The law of Scotland is therefore different from the law of England on this matter: see, for England, R v Chief Rabbi of the United Hebrew Congregations of Great Britain ex parte Wachmann [1992] 1 WLR 1036, in which Simon Brown J held that a decision of the Chief Rabbi to terminate a rabbi’s employment was not reviewable: to attract the court’s supervisory jurisdiction, there must be ‘not merely a public but potentially a governmental interest in the decision-making power in question.’ [at page 1046, emphasis added].