16 August 2013

"Such a flimsy evidential basis..."

The Lord Chancellor, Chris Grayling, isn't keen on judicial review. He sees it as a costly forum for feckless litigants, whose enthusiasm for resorting to law in their relations with public agencies needs curbing. The evidential basis (or lack thereof) underlying his proposals for England and Wales , and the principled case for introducing them, have been neatly filleted elsewhere in the blogosphere.  

I dare say, however, few of you will have heard much about the Scottish Government's own proposals to curb access to judicial review in Scotland, and limit litigants' opportunities to take our public authorities to court.

Helpfully, Professor Aileen McHarg of the University of Strathclyde recently popped up this splendid and accessible piece, summarising the Scottish Government's proposals, exploring the basis in evidence and the practical implications of Kenny MacAskill's plans to introduce an English-style "leave" or "permission" phase to Scottish cases and to impose new time-limits on lodging judicial review petitions with the Court of Session. Aileen concludes:

"It is disappointing to see such an important change to judicial review in Scotland being undertaken on such a flimsy evidential basis, and particularly surprising to see a government ostensibly committed to preserving the distinctiveness of Scots law so willing to follow the English approach, especially in a case where Scottish difference genuinely seems to be worth preserving. It is probably unlikely that the Scottish Government will be persuaded to change its mind – not least because, as Justice Scotland points out in its consultation response, it will be one of the major beneficiaries of the proposed change. One can only hope, therefore, that the Scottish Parliament will oblige it to do so."

This is important stuff, which will have a real impact on folk trying to review the way they've been dealt with by the state. McHarg's point about the paradoxical Anglicisation of many features of Scots law under this SNP government is also well taken. Regular readers who've lingered long in these parts will recall my vexation at the idea that Scotland ought to be "brought into line with England", as though the English precedent was, in its own terms, sufficient reason to adopt policy approaches preferred by our southron comrades. It is a perplexing vision of devolution.

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