Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_23.html
Cite as: 2019 SLT 337, 2019 GWD 9-109, [2019] CSOH 23, [2019] ScotCS CSOH_23

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OUTER HOUSE, COURT OF SESSION

[2019] CSOH 23

P514/18, P511/18, P1136/17

OPINION OF LADY CARMICHAEL

In the petitions

GORDON BURNS

JOSEPH MILLBANK

against

THE LORD ADVOCATE

Petitioners

Respondent

Petitioners: Leighton; Drummond Miller LLP

Respondent: O’Neill (Sol Adv); SGLD

7 March 2019

[1] One of the developments that followed the Scottish Civil Courts Review (“SCCR”)

was the introduction of a permission stage in Scottish judicial review procedure. Legislative

provision was made in section 89 of the Courts Reform (Scotland) Act 2014, which amended

the Court of Session Act 1988, by adding sections 27B-D. These are in the following terms:

“27B (1)No proceedings may be taken in respect of an application to the supervisory

jurisdiction of the Court unless the Court has granted permission for the

application to proceed.

(2) Subject to subsection (3), the Court may grant permission under

subsection (1) for an application to proceed only if it is satisfied that—

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(a) the applicant can demonstrate a sufficient interest in the subject

matter of the application, and

(b) the application has a real prospect of success.

(3) Where the application relates to a relevant Upper Tribunal decision, the

Court may grant permission under subsection (1) for the application to

proceed only if it is satisfied that—

(a) the applicant can demonstrate a sufficient interest in the subject

matter of the application,

(b) the application has a real prospect of success, and

(i) the application would raise an important point of principle or

practice, or

(ii) there is some other compelling reason for allowing the

application to proceed.

(4) The Court may grant permission under subsection (1) for an application to

proceed—

(a) subject to such conditions as the Court thinks fit,

(b) only on such of the grounds specified in the application as the Court

thinks fit.

(5) The Court may decide whether or not to grant permission without an oral

hearing having been held.

(6) In this section, “a relevant Upper Tribunal decision” means—

(a) a decision of the Upper Tribunal for Scotland in an appeal from the

First-tier Tribunal for Scotland under section 46 of the Tribunals

(Scotland) Act 2014,

(b) a decision of the Upper Tribunal in an appeal from the First-tier

Tribunal under section 11 of the Tribunals, Courts and Enforcement

Act 2007.

27C (1) Subsection (2) applies where, in relation to an application to the supervisory

jurisdiction of the Court—

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(a) the Court—

(i) refuses permission under subsection 27B(1) for the application

to proceed, or

(ii) grants permission for the application to proceed subject to

conditions or only on particular grounds, and

(b) the Court decides to refuse permission, or grant permission as

mentioned in paragraph (a)(ii), without an oral hearing having been

held.

(2) The person making the application may, within the period of 7 days

beginning with the day on which that decision is made, request a review of

the decision at an oral hearing.

(3) A request under subsection (2) must be considered by a different Lord

Ordinary from the one who refused permission or granted permission as

mentioned in subsection (1)(a)(ii).

(4) Where a request under subsection (2) is granted, the oral hearing must be

conducted before a different Lord Ordinary from the one who refused or so

granted permission.

(5) At a review following a request under subsection (2), the Court must consider

whether to grant permission for the application to proceed; and subsections

(2), (3) and (4) of section 27B apply for that purpose.

(6) Section 28 does not apply—

(a) where subsection (2) applies, or

(b) in relation to the refusal of a request made under subsection (2).

27D(1) Subsection (2) applies where, after an oral hearing to determine whether or

not to grant permission for an application to the supervisory jurisdiction of

the Court to proceed, the Court—

(a) refuses permission for the application to proceed, or

(b) grants permission for the application to proceed subject to conditions

or only on particular grounds.

(2) The person making the application may, within the period of 7 days

beginning with the day on which the Court makes its decision, appeal under

this section to the Inner House (but may not appeal under any other

provision of this Act).

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(3) In an appeal under subsection (2), the Inner House must consider whether to

grant permission for the application to proceed; and subsections (2), (3) and

(4) of section 27B apply for that purpose.

(4) In subsection (1), the reference to an oral hearing is to an oral hearing

whether following a request under section 27C(2) or otherwise.

[2] The Rules of the Court of Session were amended to make provision for the

permission procedure, in particular in paragraphs 58.7-58.10:

58.7 (1) Within 14 days from the end of the period for lodging answers the Lord

Ordinary must—

(a) decide whether to—

(i) grant permission (including permission subject to conditions

or only on particular grounds);

(ii) grant an extension to the time limit under section 27A of the

1988 Act; or

(b) order an oral hearing (for the purpose of making those decisions) to

take place within 14 days.

(1A) The petitioner, respondent and any other person who has lodged answers to

the petition must be given at least 2 days' notice of the oral hearing.

(2) Where permission is refused (or permission is granted subject to conditions

or only on particular grounds) without an oral hearing, the Lord Ordinary

must give reasons for the decision.

(3) Where an extension to the time limit under section 27A of the Act of 1988 is

refused without an oral hearing, the Lord Ordinary must give reasons for the

decision.

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58.8(1) A request to review a decision made without an oral hearing, under section

27C(2) of the Act of 1988, is made in Form 58.8.

(2) Where a request is granted, the oral hearing must take place within 7 days.

(3) The petitioner, respondent and any other person who has lodged answers to

the petition must be given at least 2 days’ notice of the oral hearing.

58.9(1) Except on cause shown, an oral hearing must not exceed 30 minutes.

(2) Where permission is refused (or permission is granted subject to conditions

or only on particular grounds) at an oral hearing, the Lord Ordinary must

give reasons for the decision.

59.10 An appeal under section 27D(2) of the Act of 1988 (appeals following oral

hearings) is made by reclaiming motion (see rule 38.8(d)).

[3] The Lord Ordinary may either grant or refuse permission on the papers at the first

stage of the procedure. At that first stage, an oral hearing on permission may be appointed.

A party may request a review at an oral hearing of a decision taken on the papers at the first

stage. When such a request is made, it is considered by a different Lord Ordinary. That

Lord Ordinary decides whether or not to appoint an oral hearing. Where the Lord

Ordinary decides not to grant a request for review at an oral hearing, that is the end of the

life of the petition. Where there has been no oral hearing at either the first stage or

following a request for review, there is no right to reclaim. A petition can, therefore, be

determined adversely to the petitioner by refusal of permission which can take place

without any oral hearing on the question of permission, and without a right of appeal. The

present petitioners complain that these aspects of the procedure are not compatible with

certain of their Convention rights. All of the petitioners have previously lodged petitions

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for judicial review in which permission was refused on the papers, and a request for review

at an oral hearing was then also refused.

The petitions

[4] The first is brought by AP, in her own name and as guardian of her son (“the adult”).

Her initials only are used in this opinion to protect the privacy of the adult. Before

amendment to the Mental Health (Care and Treatment) (Scotland) Act 2003, she was by

operation of law his named person. As a named person she was afforded access to papers

relative to proceedings relating to him in the Mental Health Tribunal for Scotland

(“MHTS”). Following amendment of that Act, she no longer has the status of a named

person. In relation to individual sets of proceedings she has been afforded “party” status

by the MHTS so that she can have access to papers. By a decision of 29 January 2018 she

was refused party status. On 26 February 2018 the Lord Ordinary granted permission in

relation to two orders dealing with the refusal of party status. He refused permission in

relation to a further six orders some of which challenged the legislation relating to named

persons. Because of the subject matter the case was dealt with expeditiously and a

substantive hearing took place on 27 February 2018. The decision of the MHTS refusing

party status was reduced. Thereafter the petitioner sought review of refusal of permission

in relation to the remaining six orders. The Lord Ordinary refused the request for an oral

review hearing. The emphasis in the earlier petition was upon the consequences of lack of

named person status in the context of tribunal proceedings. The note submitted by the

petitioner in support of her request for a review, however, refers to difficulties with

involvement in decision-making about the adult’s care and treatment outwith MHTS

proceedings, arising from her not being his named person.

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[5] Gordon Burns is a life prisoner. The complaint in the earlier petition was that the

Scottish Ministers refused to “fast-track” his progression on the waiting list for

psychological treatment to address his offending behaviour. It was alleged that the Scottish

Ministers had unlawfully fettered their discretion to depart from a policy regarding the

priority given to prisoners awaiting such treatment. The complaint was made only on

common law grounds. He submitted with his request for a review a note containing

submissions in support of that request.

[6] Joseph Millbank is a recalled extended sentence prisoner. His present petition omits

a challenge to the decision of the Lord Ordinary, but he seeks to add such a challenge by

amendment if permission is granted. The respondents have raised a plea of time-bar in

respect that they aver that the petition was lodged one day after the last day of the three-

month period for which provision is made in section 27A of the Court of Session Act 1988.

His earlier petition sought reduction of a decision to move him from the open prison estate

to closed conditions. It includes in the statement of facts a reference to his being placed in

the segregation unit and strip-searched, but did not aver any unlawfulness regarding those

procedures. The challenge to the decision to move the petitioner to closed conditions was

made on common law grounds. Before the decision on permission he sought to amend to

include a challenge to the lawfulness of the strip-search and segregation on Article 8

grounds. The court, on an opposed motion, refused to allow the minute of amendment to

be received.

[7] Each of the present three petitions was originally brought on a variety of grounds.

Following an oral hearing, I granted permission in AP for challenges based on the

petitioner’s Convention rights under Articles 5, 6 and 8, and those Articles taken together

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with Article 14. In Burns and Millbank I granted permission only in relation to the

challenges based on Article 6 and Article 6 with Article 14.

[8] At the hearing on permission, there was some discussion of the circumstance that

there had been no service of the petitions on the Court, although the provisions of an Act of

Sederunt were being challenged. Ms O’Neill told me that the Lord Advocate was willing in

this case, in the public interest, to defend the rules in question. If the Court became

concerned that the rules were not being defended at some later stage, appropriate steps

could be taken, as by the appointment of an amicus. No difficulty of that sort arose. In

granting permission, I expressed the view that judicial review proceedings should be served

on any person or body whose decision is impugned in them, at least for such interest as that

person or body may have. Where rules of court are challenged, there ought to be service on

the Court, however exceptionally it might be expected to result in a response. The Lord

Advocate also made submissions in the public interest in relation to challenges to the

interlocutors of the Lord Ordinary.

[9] In Millbank, there had been a dispute at permission stage as to whether the petition

was lodged timeously. That issue appeared to have been resolved by the substantive

hearing, and the respondent did not move his first plea in law.

[10] The orders sought in the petitions so far as the statute and the Rules of Court were

concerned were for reduction of sections 27B, C and D of the Court of Session Act 1998 and

of rules 58.7 – 58.10 of the Rules of the Court of Session, on the grounds that they were

unlawful insofar as they did not permit an oral hearing or right of appeal in some cases, or

alternatively for declarator that they were unlawful on those grounds. In the course of the

substantive hearing, Mr Leighton indicated that he recognised that the provisions

complained of could not properly be characterised as unlawful in their entirety. He

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accordingly sought only declarators. The petitioners also sought reduction of the

interlocutor in each case refusing the request for an oral review hearing.

[11] I indicated at the substantive hearing that if I were of the view that any of the

provisions of the statute were outwith the competence of the Scottish Parliament, I would

provide an Opinion to that effect, and seek further submissions as to what might follow

from that by way of remedy, and whether it would be appropriate to make an order under

section 102(2) of the Scotland Act 1998.

Matters not in dispute

[12] Parties both submitted that a decision on permission was not a determination of the

civil rights and obligations of the petitioners, and that the full range of protections afforded

by Article 6 were not available to the petitioners. The permission procedure was, however,

a limitation placed on access to the court. The following are the passages referred to by

parties in H v United Kingdom (1985) 45 DR 281, at pages 283 to 285, which they said set out

the correct approach to determining the lawfulness of a limitation on access to a court. H

relates to the procedure to provide for leave to vexatious litigants to institute proceedings

under the Vexatious Actions (Scotland) Act 1898. It is a Commission decision on

admissibility.

“1(b) The specific refusal of consent to the applicant’s action to proceed ... cannot

be said to have determined his civil rights and obligations as it constituted a mere

procedural step before the applicant was able to bring an action in the civil courts …

It follows that the procedure by which such consent was to be obtained did not

attract the procedural guarantees of Article 6 of the Convention, and this aspect of

the application must be dismissed as being manifestly ill-founded …

action against a policeman did, however, restrict the applicant’s access to court.

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The European Court of Human Rights in its judgment in the Golder case … did not

make specific reference to the question of vexatious litigants, but it did hold as

follows:

“36. … Article 6 para 1 secures to everyone the right to have any claim relating to his

civil rights and obligations brought before a court or tribunal. In this way the

Article embodies the “right to a court”, of which the right of access, that is the right

to institute proceedings before courts in civil matters, constitutes one aspect only. To

this are added the guarantees laid down by Article 6 para 1 as regards both the

organisation and composition of the court, and the conduct of the proceedings. In

sum, the whole makes up the right to a fair hearing.”

…

The question of access to court has been further discussed by the Court in the

Ashingdane judgment … in which the Court held as follows:

“Certainly the right of access to the courts is not absolute but may be subject to

limitations; these are permitted since the right of access ‘by its very nature calls for

regulation by the State, regulation which may vary in time and in place according to

the needs and resources of the community and of individuals’ (see the above-

mentioned Golder judgment, quoting the Belgian Linguistic judgment …)

…

Nonetheless, the limitations applied must not restrict or reduce the access left to the

individual in such a way or to such an extent that the very essence of the right is

impaired (see the above mentioned Golder and Belgian Linguistic judgments … and

also the Winterwerp judgment …). Furthermore, a limitation will not be compatible

with Article 6 para 1 if it does not pursue a legitimate aim and if there is not a

reasonable relationship of proportionality between the means employed and the aim

sought to be achieved.”

In the present case the Commission is only called upon to determine whether

following the Golder and Ashingdane judgments, the applicants access to court was

restricted to such an extent that the very essence of the right was impaired, whether

the aim pursued was legitimate, and whether the means employed to achieve that

aim were proportionate to the aim itself.

…

The vexatious litigant order of 16 December 1982 did not limit the applicant’s access

to court completely, but provided for a review by a senior judge of the Scottish

judiciary of any case the applicant wished to bring. The Commission considers that

such a review is not such as to deny the essence of the right of access to court;

indeed, some form of regulation of access to court is necessary in the interests of the

proper administration of justice and must therefore be regarded as a legitimate aim

(cf No 727/60, Dec 5.8.60, Yearbook 3 pp 302, 309).

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Further, the Commission finds that in the present case the means employed in

regulating access to court by the applicant were not disproportionate to the aim of

ensuring the proper administration of justice (cf the reference to the Commission’s

report in the Golder case, supra) and it does not appear from the applicant’s

submissions that the judge’s refusal of consent to commence proceedings was in any

way arbitrary or unreasonable.”

[13] In accordance with the approach set out in those passages, parties were at one in

submitting that I required to consider whether the procedure for permission restricted the

petitioners’ right of access to the Court to such an extent as to impair the very essence of that

right; and the proportionality of the measure. In relation to proportionality there was no

dispute that the regulation of access to courts in the interests of the proper administration of

justice was a legitimate aim. The petitioners did not assert that the introduction of a

procedure requiring permission to proceed in judicial review was of itself unlawful. Their

objection was to the particular provisions enacted to that end.

Petitioner’s submissions

[14] Against that background, Mr Leighton submitted that a combination of factors in the

scheme, being the potential for termination of the proceedings without an oral hearing, and

the further consequence of the absence of an appeal, both impaired the essence of the right

of access to the court, and were disproportionate interferences with it. In relation to the

importance of an oral hearing, he referred to Goc v Turkey [2002] ECHR 589 at paragraph 47:

“47. According to the Court's established case-law, in proceedings before a court

of first and only instance the right to a “public hearing” in the sense of Article 6 § 1

entails an entitlement to an “oral hearing” unless there are exceptional circumstances

that justify dispensing with such a hearing (see, for instance, Håkansson and Sturesson

v Sweden, judgment of 21 February 1990, Series A no. 171-A, p. 20, § 64; Fredin v

Sweden (no. 2), judgment of 23 February 1994, Series A no. 283-A, pp. 10-11, §§ 21-22;

and Allan Jacobsson v Sweden (no. 2) judgment of 19 February 1998, Reports 1998-I, p.

168, § 46).”

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[15] In AP, in which permission had been given for challenges under Articles 5 and 8, the

petitioner submitted that the guarantee of a public hearing was implicit in relation to Article

5. In relation to Article 8, the guarantee, so far as procedure was concerned, was of

sufficient involvement in the decision making process relating to the adult. There was

nothing in the petitioner’s submissions to indicate to me that either Article 5 or Article 8

imported any more stringent requirement as to procedure than did Article 6, and I have

therefore not considered the challenges made under those articles separately. Mr Leighton

accepted that the regulation of access to courts in the interests of the proper administration

of justice was a legitimate aim so far as each of these Articles was concerned.

[16] The test to be applied, so far as proportionality was concerned, was that set out in

Christian Institute v Lord Advocate 2016 SLT 805 at paragraph 90. The relevant questions

were (i) whether the objective was sufficiently important to justify the limitation of a

protected right; (ii) whether the measure was rationally connected to the objective; (iii)

whether a less intrusive measure could have been used without unacceptably compromising

the achievement of the objective; and (iv) whether, balancing the severity of the measure's

effects on the rights of the persons to whom it applied against the importance of the

objective, to the extent that the measure would contribute to its achievement, the former

outweighed the latter. He accepted that the objective was sufficiently important to justify

the limitation of a protected right, and that the measure in question was rationally connected

to the objective. He did not, however, accept that the measure was proportionate having

regard to questions (iii) and (iv) above. Mr Leighton placed emphasis on what was at stake

for each petitioner, and the relatively limited court time involved in an oral hearing.

[17] The system in England and Wales did permit judicial review applications to be

disposed of at permission stage, but only where a case was found to be totally without merit.

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It also provided some access to the Court of Appeal in such circumstances: R (Wasif) v

Secretary of State for the Home Department [2016] 1 WLR 2793. There was no scope for a

margin of appreciation where the subject matter of the provisions was court procedure, and

a domestic court was dealing with its own justice system. The petitioner in AP had wished

to have a 30 minute oral hearing in a matter which was of importance to herself and the

adult, which concerned the lawfulness of rules and legislation, and which affected others.

[18] So far as Article 14 was concerned, the essential elements were (i) that the matter in

question fell within the ambit of another article of the Convention; (ii) a difference of

treatment; (iii) that the difference of treatment was on a ground within the scope of Article

14; (iv) that others treated differently were in an analogous situation and (v) the absence of

justification: R (Steinfeld and Keidan) v Secretary of State for International Development [2018] 3

WLR 415, paragraph 19. There was no dispute that the matters at issue fell within the ambit

of Article 6. There was a difference of treatment between litigants seeking judicial review

and other litigants. This fell within the scope of “other status” for the purposes of Article

14. The protection conferred by Article 14 was not limited to different treatment based on

characteristics which were personal in the sense of being innate or inherent: Clift v United

Kingdom [2010] ECHR 1106, paragraphs 55-63. It was not necessary that the treatment

complained of must exist independently of the “other status” on which it was based: Clift,

paragraph 60.

[19] The aim of Article 14 was to ensure that where a state provided for rights falling

within the ambit of the Convention, but going beyond the minimum guarantees set out in

the Convention, those rights were applied fairly and consistently within the jurisdiction,

unless a difference of treatment was objectively justified. Counsel referred also to AL

(Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1445, paragraphs 24-28 in

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relation to the correct approach to determining whether discrimination had occurred which

was incompatible with Article 14. Counsel submitted that the importance of the right

protected by the substantive article in informing the need for careful scrutiny. He referred

to the French language text of Article 14, which uses the expression “toutes autres

situations”, reflecting a more expansive intention than “other status” as to the range of

circumstances in which Article 14 should afford protection. The rights in issue in relation to

Articles 5, 6 and 8 were important ones. In AP I understood his submission to be that even

more careful scrutiny was required where the rights of a young man lacking capacity were

at issue than in a case like Clift involving someone convicted of serious crimes.

[20] The petitioners were in an analogous position to other litigants seeking to vindicate

their rights. There was no legitimate aim articulated for the difference of treatment. Insofar

as the respondents sought to rely on the SCCR as providing justification, while it might do

so in relation to the introduction of permission, it could not as regards the absence of oral

hearing or appeal. He reiterated that it was the whole procedure that created the difficulty,

although there was a variety of different ways, in his submission, in which the scheme might

be rendered compliant with the petitioners’ Convention rights. While he accepted that it

might be difficult for a litigant to suggest that she had no real right of access to a court if an

oral hearing was afforded, he maintained his position that his objection was to the scheme as

a whole, that being one which permitted termination of the proceedings without an oral

hearing, and without a right of onward appeal.

Respondents’ submissions

[21] Ms O’Neill submitted that limitations on the right of access to the court might

involve decision-making wholly on the papers, citing Wasif, and Bhamjee v Fosdick and others

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[2004] 1 WLR 88, paragraphs 32 and 33. She submitted that the provisions complained of

did not impair the very essence of the petitioners’ right of access to the court. The

procedure involved an application to the court, and consideration of it by the court, against

the tests set out in the statute, as to whether or not permission should be granted. The tests,

and in particular the “real prospect of success” test in section 27B, as further explained and

articulated in Wightman v Advocate General 2018 SLT 356 at paragraph 9, were themselves of

relevance. The intention was to sift out unmeritorious cases, but not to create an

unsurmountable barrier which would prevent what might appear to be a weak case being

fully argued in due course.

[22] Where the Lord Ordinary refused permission or granted permission on certain

grounds only, or subject to conditions, the petitioner was entitled to request a review at an

oral hearing. That application had to be considered by a different Lord Ordinary. The

statutory scheme explicitly envisaged that the second Lord Ordinary must address whether

or not an oral hearing should be held.

[23] The requirement for permission served a legitimate aim. She referred to the aims

described in the report of the SCCR and the policy memorandum accompanying the Courts

Reform (Scotland) Bill, namely preventing unmeritorious claims from proceeding, and

thereby enabling resources to be focused on the expeditious disposal of cases which were

allowed to proceed. The report of the SCCR at Chapter 12, paragraph 51, included the

following:

“We recommend the introduction of a requirement to obtain leave to proceed with

an application to proceed with judicial review in Scotland, following the model of

part 54 of the Civil Procedure Rules in England and Wales. We consider that such a

procedure will assist, at an early stage, in encouraging early concessions by

respondents in cases which are well founded in preventing unmeritorious claims

from proceeding. This will create additional capacity in the court programme,

enabling those cases in which leave is granted to be dealt with expeditiously.”

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The policy memorandum referred to the report of the SCCR, and to a preceding consultation

which had posed the question: “Do you agree that the introduction of the leave to proceed

with an application for judicial review will filter out unmeritorious cases?”

[24] The means employed were proportionate to the aim sought to be achieved. The

procedure contained a check on the decision-making of the first Lord Ordinary, namely the

procedure to request review. To require an oral hearing in every case would reduce the

effectiveness of permission in minimising the impact of unmeritorious applications on the

resources of the court and of parties. Such a requirement would, she submitted, be

pointless and waste the resources of the court and unjustifiably prolong an apparent

uncertainty about the lawfulness of the challenged decision, referring to the language used

by the Court of Appeal in Wasif at paragraph 16.

[25] A decision on permission did not attract the full range of protections provided by

Article 6. Article 6 did not in any event guarantee a right of appeal: Delcourt v Belgium

(1970) 1 EHRR 355, paragraph 25. The exclusion of a right of appeal in the circumstances

envisaged by the statute was a proportionate response. No separate arguments had been

advanced under Articles 5 and 8.

[26] In relation to Article 14, differences in the procedural requirements of forms of action

did not constitute differences of treatment based on “other status”. They were not

grounded in a characteristic by which persons or groups of persons were distinguishable

from each other. Ms O’Neill referred to Whaley v Lord Advocate 2008 SC (HL) 107, at

paragraphs 27 to 30, and the authorities cited there. In particular, at paragraph 30, Lord

Hope of Craighead said, referring to Adams v Scottish Ministers 2004 SC 665:

“ … it is the activity of hunting with hounds for sport that has been singled out for

differential treatment, not participation in it by a particular sort of people or by

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people having a particular characteristic. … The real reason for it lies in the nature of

the activity, not any personal characteristic of [the appellant] or any of the many

other people of all kinds and social backgrounds who participate in hunting.”

There was an analogy with the present case, in that it was the activity of seeking to access

the supervisory jurisdiction of the court that was being treated in a particular way.

[27] The requirement for permission in relation to applications to the supervisory

jurisdiction was legitimate and proportionate. There was a particular interest in the early

disposal of applications directed against the decisions of public authorities on legal grounds.

[28] Ms O’Neill conceded that she was unable to point to any example of a first instance

sift procedure whereby civil proceedings could be brought to an end without an oral

hearing, and without a right of appeal. The closest analogy was with the procedure where

persons who have been determined to be vexatious litigants attempt to bring proceedings

and cannot do so without the permission of the court.

[29] The respondents were unable to identify any discussion in the Scottish Parliament

regarding the nature of the process for permission. There is nothing to indicate that

Parliament particularly considered the circumstance that the procedure set out in the bill

could result in the determination of the petition by refusal of permission without any oral

hearing, and without a right of appeal where that has occurred, or weighed the merits of

that particular procedure against benefits which it might provide.

Discussion

[30] Perhaps surprisingly, there was little discussion in the course of the substantive

hearing as to what value an oral hearing in open court, as opposed to a decision on the

papers in chambers, brings to proceedings. The European Court of Human Rights has on

many occasions identified the protection afforded by a public, oral hearing against the

Page 18 ⇓

administration of justice in secret without public scrutiny, and the importance of such

hearings in maintaining public confidence in the courts. In rendering the administration of

justice visible, it contributes to the achievement of a fair trial. It contributes also to the

achievement of open justice. Open justice is a principle of the common law.

[31] It was difficult to identify precisely what factor was said to render the provisions

complained of incompatible with Article 6 rights. Mr Leighton referred both to the absence

of an oral hearing, and the absence of appeal where there has been no oral hearing. His

submission was that it was the combination of factors that gave rise to the incompatibility.

Following discussion I understood him to accept that if there were an oral hearing at any

point before a Lord Ordinary, that would render the provisions compatible. That would

within the current statutory scheme give rise to a right of appeal.

[32] As I have already said, no example of a procedure precisely similar, which had been

found to comply with the requirements of Article 6, so far as those apply to a sifting

procedure, was cited to me. The respondents referred to H and to Bhamjee. I did not find

these of particular assistance in the present context. They relate to vexatious litigants who

have, by reason of an established pattern of behaviour of abusing the processes of the court,

come to find that access which they would normally have had as of right, has been limited.

In Scottish cases, like H, the limitation occurs when there has already been an order of the

court made in response to a history of vexatious proceedings. It is that which underlies and

justifies the summary procedure for consideration of further requests to litigate.

[33] The respondents referred in this connection to Wasif as an example of a procedure in

which proceedings could be brought to an end without any oral hearing. Two appellants

challenged decisions of the Upper Tribunal to refuse permission to bring judicial reviews.

In each case the Upper Tribunal had determined that the claim was totally without merit.

Page 19 ⇓

Rule 54.12 of Civil Procedure Rules (CPR r 54.12) provided that a claimant whose

application to the High Court to apply for judicial review was refused in whole or in part on

the papers was entitled to request that his decision be reconsidered at a hearing (commonly

known as a renewal hearing). That was, however, subject to further provision, with effect

from 1 July 2013, in the following terms:

“Where the court refuses permission to proceed and records the fact that the

application is totally without merit in accordance with rule 23.12, the claimant may

not request that decision to be reconsidered at a hearing.”

[34] The Upper Tribunal rules regarding permission were in material respects identical.

The appeal concerned the correct approach to the application of the “totally without merit”

(“TWM”) certification. It did not involve a challenge to the lawfulness of the relevant parts

of the procedural rules.

[35] As well as precluding a renewal hearing, certification had consequences in relation to

onward appeal. Applications for permission to appeal would be determined on the papers,

without a hearing. The Court of Appeal had already considered the relevant provisions in

R (Grace) v Secretary of State for the Home Department [2014] 1 WLR 3432. Although Wasif

does not involve any challenge to the rule in question, it does contain some potentially

useful observations about the importance of an oral hearing, and the sorts of cases, in which

they will serve some purpose, and those in which they will serve no purpose at all, in

paragraphs 15-17. These require to be viewed in the context of the procedure in question,

and do not all translate without modification to Scottish procedure. I return to discuss

these further below.

“15. … There are indeed cases in which the judge considering an application for

permission to apply for judicial review can see no rational basis on which the claim

could succeed: these are in our view the cases referred to in the Grace case as “bound

to fail” (or “hopeless”). In such cases permission is of course refused. But there are

also cases in which the claimant or applicant (we will henceforth say “claimant” for

Page 20 ⇓

short) has identified a rational argument in support of his claim but where the judge

is confident that, even taking the case at its highest, it is wrong. In such a case also it

is in our view right to refuse permission; and in our experience this is the approach

that most judges take. […]

16. Once that is recognised, there is a sensible basis for distinguishing between

the two kinds of case as regards the right to an oral renewal hearing. The provision

for such a right, in the Rules as currently structured, recognises that oral argument

may on occasion persuade a court that a claim for which the judge has refused

permission on the papers does in fact have a realistic chance of success. To allow for

that possibility is reasonable where the judge has recognised a rational case but has

felt able to reject it on the papers; and it reflects the value which the common law

tradition attaches to oral argument. But where the judge has found that the claim is

bound to fail, in the sense identified above, it necessarily follows that there is no such

chance; and to allow a hearing would be pointless and would merely – contrary to

the policy behind the 2013 rule-changes – waste the resources of the court and

unjustifiably prolong an apparent uncertainty about the lawfulness of the challenged

decision.

17. It is inescapable that the distinction between those cases which are “bound to

fail” (and thus fall for certification as TWM) and those where permission is refused

on the less definitive basis identified above is a matter for the assessment of the judge

in each case. … we would make the following observations

(1) At the risk of spelling out the obvious, judges should certainly not

certify applications as TWM as the automatic consequence of refusing

permission. The criteria are different.

(2) We repeat what Maurice Kay LJ said in para. 15 of his judgment in

Grace, as quoted above:

‘[N]o judge will certify an application as TWM unless he is confident

after careful consideration that the case truly is bound to fail. He or

she will no doubt have in mind the seriousness of the issue and the

consequences of his decision in the particular case.’

(3) The potential value of an oral renewal hearing does not lie only in the

power of oral advocacy. It is also an opportunity for the claimant to

address the perceived weaknesses in the claim which have led the

judge to refuse permission on the papers (and which should have

been identified in the reasons). The points in question may not

always have been anticipated or addressed in the grounds and

skeleton argument (particularly if the judge has drawn them from the

respondent’s summary grounds: see (6) below). The judge should

only certify the application as TWM if satisfied that in the

circumstances of the particular case a hearing could not serve such a

purpose; the claimant should get the benefit of any real doubt.

Page 21 ⇓

(4) Mr Fordham submitted that the essential question for a judge in

deciding whether to certify was "whether another Judge, with the

benefit of oral submissions at an oral hearing, would be bound to

refuse [permission]". That is broadly in line with what we have said

above, but the reference to "another Judge" is not quite right.

Although it will generally be the case that any renewal hearing will be

before a different judge than the one who refused permission on the

papers, the rules do not require that that be the case; and in any event

in an ideal world one judge's standard of what is arguable should be

the same as another's. The point of a renewal hearing is not that the

claimant is entitled to another dip into the bran-tub of Administrative

Court or Upper Tribunal judges in the hope of finding someone more

sympathetic. Having said that, we do not deny that some judges may

find it a useful thought-experiment to ask whether they can conceive

of a judicial colleague taking a different view about whether

permission should be granted.

(5) Judges considering permission applications will quite commonly

encounter cases – particularly where the claimant is unrepresented –

in which the claim form/grounds and/or the supporting materials are

too confused or inadequate to disclose a claim which justifies the

grant of permission but where the judge nevertheless suspects that

proper presentation might disclose an arguable basis of claim. In such

cases he or she should not certify the application as TWM. The right

course will usually be to refuse permission, with reasons which

identify the nature of the problem, giving the claimant the

opportunity to address it at an oral renewal hearing if they can; but

there may sometimes be cases where the better course is to adjourn

the permission application to an oral hearing, perhaps on an inter

partes basis.

(6) Mr Fordham pointed out that at the time that a judge decides the

permission application on the papers the respondent will have had

the opportunity to file an Acknowledgment of Service, incorporating

summary grounds of defence, to which the claimant has under the

Rules no right of reply (though some claimants do provide responses

which are in practice put before the Judge). Judges should not certify a

claim as TWM on the basis of points raised in the summary grounds

to which the claimant might have had an answer if given the

opportunity.”

[36] In the course of my own researches I came across a number of cases which did not

relate to a sifting mechanism limiting access to the court, but where decisions relating to

criminal charges or which determined civil rights and obligations had been taken without an

Page 22 ⇓

oral hearing, and the Strasbourg court rejected challenges based on Article 6. It seemed to

me that in considering the merits of the submission that the lack of an oral hearing was one

of the factors which impaired the very essence of the right of access to the court, it might be

relevant to examine some of the circumstances in which proceedings have involved either

the determination of a criminal charge or of civil rights/obligations and in which the

Strasbourg court has found that the want of a public, oral hearing did not give rise to a

breach of Article 6(1). I invited further submissions about these cases. They were: Schuler-

Zraggen v Switzerland (App No 14518/89), 24 June 1993; Scarth v United Kingdom (App No

33745/96) (1999) 28 EHRR CD 47; Pursiheimo v Finland (App No 57797/00) (2004) 38 EHRR

CD 138; Jussila v Finland (App No 73053/01) (2007) 45 EHRR 39; Saccoccia v Austria (App No

69917/01) (2010) 50 EHRR 11.

[37] The petitioners submitted that the cases were useful so far as they dealt with the

right to an oral hearing, but cautioned against looking at the absence of an oral hearing in

isolation; it was the combination of that aspect with the absence of a right of appeal that was

the subject of the complaint. They submitted that the cases related to procedures in which a

right of appeal was available. Article 6 generally required an oral hearing. That there were

exceptions to that requirement did not detract from the importance of it. The respondents

submitted that the cases supported the view that there was no absolute right to an oral

hearing, even in substantive proceedings involving the determination of civil rights and

obligations. A fortiori, such a right was not absolute in the context of a filtering mechanism.

In Schuler-Zraggen it was the decision of the Federal Insurance Court - from which there was

no further appeal – that was impugned. The existence or otherwise of a right of appeal was

not material to the reasoning of the Strasbourg court in any of the cases.

[38] Various authorities are conveniently reviewed in Saccoccia, at paragraphs 70-76:

Page 23 ⇓

“70. The Court reiterates that the holding of court hearings in public constitutes a

fundamental principle enshrined in paragraph 1 of Article 6. This public

character protects litigants against the administration of justice in secret with

no public scrutiny; it is also one of the means whereby confidence in the

courts can be maintained. By rendering the administration of justice

transparent, publicity contributes to the achievement of the aim of Article 6 §

1, namely a fair trial, the guarantee of which is one of the fundamental

principles of any democratic society, within the meaning of the Convention

(see, for example, Diennet v France, 26 September 1995, § 33, Series A no.

325‑A, and Werner v Austria, 24 November 1997, § 45, Reports 1997‑VII).

71. According to the Court’s case-law, the right to a “public hearing” under

Article 6 § 1 entails the right to an “oral hearing” unless there are

circumstances which justify dispensing with such a hearing (see Allan

Jacobsson v Sweden (no. 2), 19 February 1998, § 46, Reports 1998‑I, with

reference to Fredin v Sweden (no. 2), 23 February 1994, §§ 21-22, Series A no.

283‑A, and Stallinger and Kuso v Austria, 23 April 1997, § 51, Reports 1997-II).

72. In the present case neither the Vienna Regional Court nor the Vienna Court of

Appeal held a hearing before taking over the execution of the Rhode Island

District Court’s forfeiture order (see paragraphs 33 and 42 above). The Court

notes that section 67 of the ELAA does not envisage the holding of a hearing

in proceedings concerning the execution of a foreign decision. The fact that

the applicant did not request a hearing before the Vienna Regional Criminal

Court cannot therefore be interpreted as a waiver of his right to a hearing (see

Werner, cited above, § 48). Moreover, in his appeal against the Regional

Court’s decision he complained about the lack of a hearing and requested the

appellate court to hold one (see paragraph 40 above).

73. The Court must therefore examine whether there where circumstances of

such a nature as to dispense the courts from holding a hearing. The Court has

accepted that a hearing may not be required where there are no issues of

credibility or contested facts which necessitate a hearing and the courts may

fairly and reasonably decide the case on the basis of the parties’ submissions

and other written materials (see, as a recent authority, mutatis mutandis,

Jussila v Finland [GC], no. 73053/01, § 41, ECHR 2006‑XIV, with further

references).

74. It follows from the Court’s case-law that the character of the circumstances

that may justify dispensing with an oral hearing essentially comes down to

the nature of the issues to be decided by the competent national court, not to

the frequency of such situations. It does not mean that refusing to hold an

oral hearing may be justified only in rare cases (ibid., §42). The overarching

principle of fairness embodied in Article 6 is, as always, the key

consideration.

Page 24 ⇓

75. In particular the Court has had regard to the technical nature of disputes over

social-security benefits, which are better dealt with in writing than by means

of oral argument. It has repeatedly held that in this sphere the national

authorities, having regard to the demands of efficiency and economy, could

abstain from holding a hearing since systematically holding hearings could

be an obstacle to the particular diligence required in social-security

proceedings (see, for instance, Schuler-Zgraggen v Switzerland, 24 June 1993, §

58, Series A no. 263; Döry v Sweden, no. 28394/95, § 41, 12 November 2002; and

Pitkänen v Sweden (dec.), no. 52793/99, 26 August 2003). In addition the Court

has sometimes noted that the dispute at hand did not raise issues of public

importance such as to make a hearing necessary (see Schuler-Zgraggen, ibid.).

76. Furthermore, the Court has accepted that forgoing a hearing may be justified

in cases raising merely legal issues of a limited nature (see Allan Jacobsson

(no.2), cited above, §§ 48-49, and Valová and Others v Slovakia, no. 44925/99, §

68, 1 June 2004) or of no particular complexity (Varela Assalino v Portugal

(dec.), no. 64336/01, 25 April 2002, and Speil v Austria (dec.), no. 42057/98, 5

September 2002).”

[39] Where there is a determination of civil rights and obligations or of any criminal

charge, there is a requirement for a public hearing, which entails an oral hearing unless there

are circumstances which justify dispensing with one. The requirements of open justice are

at least as rigorous. In this jurisdiction substantive hearings are also subject to the “open

door” requirements of the Court of Session Act 1693 (c 42):

“That in all tyme comeing all Bills Reports Debates Probations and others relating to

processes shall be considered reasoned advised and voted by the Lords of Session

with open doors where parties procurators and all others are hereby allowed to be

present as they used to be formerly in time of Debates but with this restriction that in

some speciall cases the saids Lords shall be allowed to cause remove all persons

except the parties and their procurators.”

What I draw from the discussion in Saccoccia is that even where Article 6 applies in all its

aspects, there are some limited circumstances in which an oral hearing will not be required.

When it may be dispensed with depends on the nature of the matter at hand, and whether it

can be disposed of fairly without an oral hearing. In sifting procedures where what is at

issue is the lawfulness of a provision limiting access to the court, it seems to me that that

must also be the case, and be the case a fortiori.

Page 25 ⇓

[40] It is necessary to take into account also the elements that do form part of the

procedure. They regulate access to the court on the basis of a test that is still a relatively

modest one as articulated by the Lord President in Wightman at paragraph 9:

“The words “real prospect of success” mean what they say. However, they were

introduced against the background of EY v Secretary of State for Scotland (supra) and

were intended to replace the former “manifestly without substance” test for first

orders. They were designed to set a higher hurdle than that which was described in

EY as “low”. The new test is certainly intended to sift out unmeritorious cases, but it

is not to be interpreted as creating an unsurmountable barrier which would prevent

what might appear to be a weak case being fully argued in due course. Of course the

test must eliminate the fanciful, but it is dropping the bar too low to say that every

ground of review which is not fanciful passes the test. It is not enough that the

petition is not “manifestly devoid of merit”, since that, in essence, reflects the

“manifestly without substance” test adopted in EY. The applicant has to demonstrate

a real prospect, which is undoubtedly less than probable success, but the prospect

must be real; it must have substance. Arguability or statability, which might be seen

as interchangeable terms, is not enough (SCCR c 12, para 53). The substance, or the

lack of it, is something which the court has to determine as a preliminary issue; not

after a full consideration of elaborate pleadings.”

The “real prospect of success” criterion is not, therefore, intended to exclude cases that

appear merely weak.

[41] Nothing that a Lord Ordinary can do at the first stage of the procedure can exclude

an oral hearing. The Lord Ordinary considering matters at the first stage will be bearing in

mind the content of Practice Note No 3 of 2017. At paragraph 12, which relates to the first

stage of the permission process, it includes this:

“The Lord Ordinary must make a decision on whether to grant or refuse permission

or order an oral hearing (RCS 58.7). The Lord Ordinary will ordinarily order an oral

hearing if considering refusing permission. In that event, the Lord Ordinary will

normally produce a brief note that sets out the concerns which are to be addressed at

the hearing. This will assist parties and the court in ensuring that hearings do not

exceed 30 minutes (RCS 58.9).”

This plainly expresses an expectation as to what a Lord Ordinary will do “ordinarily”, and

that is to appoint an oral hearing when considering refusing permission. It is implicit that

the cases in which permission will be refused without an oral hearing are cases in which it is

Page 26 ⇓

very clear indeed to the Lord Ordinary that the petition fails one or more of the relevant

tests, and that there is therefore nothing to be gained by having an oral hearing.

[42] A decision taken at the first stage refusing permission on the papers must be

accompanied by reasons. The party has an opportunity to address those reasons when

requesting a review at an oral hearing. Although nothing in Form 58.8 prescribes that the

reasons given by the first Lord Ordinary are to be addressed in the request, as a matter of

practice, requests for a review are generally accompanied by a note stating the respects in

which the petitioner takes issue with the reasons given. Sometimes additional information

is provided. A party may take the opportunity to respond to something said against him in

the Answers lodged. It has been known, for example, for affidavits not originally presented

to be presented with the request for review. The process for seeking review affords

opportunities to answer apparent deficiencies which have been identified in the reasons for

refusal of permission given by the first Lord Ordinary. It affords opportunities of the sort

described in Wasif at paragraph 17(3), even without an oral review hearing. The petitioners

AP and Burns both took that opportunity. It is only following consideration of the case by a

second, different, Lord Ordinary, where that is requested, that the case can come to an end

without an oral hearing.

[43] The matter of whether to appoint an oral hearing is at both stages left for the decision

of the Lord Ordinary. The Lord Ordinary, whether considering permission under rule 58.7

or a request under rule 58.8, and in considering whether to make a decision with or without

an oral hearing, will have the opportunity to consider all the relevant circumstances. The

procedure has the following features.

(a) The Lord Ordinary has the opportunity to consider whether the case is one

which, to borrow the English terminology, is totally without merit.

Page 27 ⇓

(b) The Lord Ordinary considering permission at the first stage will be guided by

the Practice Note already referred to, and will not refuse permission without

an oral hearing unless satisfied that such a hearing would serve no purpose.

Lord Ordinary will be in a position to consider whether these raise points to

which the petitioner ought to be afforded an opportunity to respond before a

decision is made on permission. Where the first Lord Ordinary identifies a

matter of this sort, that may lead to the conclusion that an oral hearing is

required at the first stage of the proceedings. At an oral hearing of this sort,

the petitioner will have seen the Answers, and also a note from the Lord

Ordinary setting out the matters of concern.

(d) In giving reasons for refusal on the papers at the first stage, the Lord

Ordinary will have in mind the importance of providing reasons as an aspect

of fair procedure, and of the opportunity those reasons will afford for the

petitioner to consider whether to seek review, and, if so, on what grounds.

(e) The Lord Ordinary will be bearing in mind the importance of the rule of law

in public law cases, and the need to ensure that the Court is not readily

disabled from enforcing the rule of law: see for example Taylor v Scottish

Ministers [2019] CSIH 2, Lord Drummond Young at paragraphs 15 and 18.

This may require particular consideration where preliminary matters such as

standing are raised, (as in Taylor, a statutory appeal).

(f) A Lord Ordinary considering whether to grant a request for review at an oral

hearing will consider independently whether an oral hearing is required.

She will also have the reasons provided by the first Lord Ordinary, and the

Page 28 ⇓

terms of the request for review, which should assist in assessing whether

benefit will be derived from an oral hearing.

(g) The Lord Ordinary will be applying the statutory tests relevant to permission,

along with the jurisprudence construing them. She will be alert to the need to

avoid undertaking a substantive evaluation of the competing submissions of

parties or a stringent examination of the merits: Wightman, paragraphs 6, 8.

(h) The Lord Ordinary will be aware of the approach as set out in Wightman not

only as to the test to be applied, but in relation to the subject matter at stake,

and the approach that it may be appropriate for the court to take in cases of

particular public importance: Wightman, paragraph 12.

[44] Mr Leighton adverted to the differences between the procedure in Scotland and that

in England and Wales. Refusal on the papers without the possibility of an oral hearing

related only to a particular category of cases, delimited by a stringent test. Even where that

test was met there was still access to appellate procedure. While all of that is true, it is also

necessary to note that the scope for oral hearing can be removed by a single judge at the first

stage of the procedure in England and Wales – something that cannot happen at the first

stage of the permission procedure in Scotland. While there is no access to reclaiming where

there has been no oral hearing in Scotland, there is access to review by a second, different

judge. Unlike the judge dealing with permission to appeal in the procedure described in

Wasif, the second Lord Ordinary can order that an oral hearing is to take place. That a

different series of measures has been chosen in the different neighbour jurisdictions does not

mean that one or the other is necessarily unlawful by reason of being a disproportionate

limitation. What the two systems have in common is that the determination as to whether

or not an oral hearing is to take place is placed in the hands of a judge. In neither system

Page 29 ⇓

does legislation or a rule of procedure mandate that an oral hearing must be available at

some stage in every case.

[45] I consider that the provisions do not impair the very essence of the petitioners’ right

of access to the court. Even where Article 6 applies in all its aspects, there are some

circumstances in which no oral hearing is required. Article 6 does not require that an appeal

be available. Whether an oral hearing is required depends on the subject matter and

whether it is necessary for the fair determination of the matter. In the context of this

particular procedure, the decision as to whether an oral hearing is required is left to the Lord

Ordinary. As I have already observed, the Lord Ordinary will be able to take into account

all of the circumstances relevant to the particular case in determining what is required, and

will require to take into account the guidance given by appellate courts as to the correct

approach to determining permission. While there is no possibility of reclaiming where

there has been no oral hearing, there is a two stage procedure, with provision for review by

a second judge, and the possibility of an oral hearing at either stage of the procedure.

[46] I am satisfied also that the provisions represent a proportionate limitation on the

right of access to the court. I do not reach this conclusion unimpeded by a sense of unease

about a scheme which could theoretically permit a challenge, even on a matter of very great

public importance, to be brought to an end without a hearing in open court. It is, however,

proportionate because it recognises that there are some cases in which an oral hearing will

be required for the fair and proper determination of whether permission should be granted,

and others in which it will not. There will be cases in which there will be nothing to be

gained from an oral hearing. Such cases will include cases which are, on examination of the

papers, totally without merit. In such cases there is no point in prolonging the proceedings

or incurring expense by having an oral hearing. The legislation places the decisions as to

Page 30 ⇓

whether an oral hearing is required in the hands of the Lords Ordinary who consider the

papers. Those Lords Ordinary will have the opportunity to consider all of the matters that I

have already referred to above. If an oral hearing were required in every case that would

diminish the effectiveness of the measure insofar as it is directed at avoiding the expenditure

of resources, which include the costs to parties and the court associated with the holding of a

hearing, on unmeritorious claims. It would compromise unacceptably the achievement of

the objective. There was no evidence before me as to the resources that would be required

to deal with additional oral hearings or reclaiming motions. Judicial resources are, of

course, expended in dealing with cases on the papers. Depending on the nature of a

petition and the volume of supporting papers, consideration of permission on the papers

may take some time. That additional hearings in court (which would be the result of

requiring an oral hearing in every case where permission was not granted on the papers)

would give rise to additional calls on the resources of the court and the parties is, however,

self-evident. I am enjoined to weigh the severity of the effect of the measure against the

importance of the objective. In trying to assess the severity of the effect of the measure, I

have done so taking account of all of the features I have set out above. These include the

guidance provided by the Practice Note as to the norm regarding oral hearings where a Lord

Ordinary is considering refusing permission. The effect of the measure should not be,

having regard to those features, to deprive a litigant of an oral hearing in any case in which

it is required for the proper determination of whether or not to grant permission. On that

basis I do not consider that the impact of the measure is disproportionate to its likely benefit.

[47] So far as Article 14 is concerned, if there is any difference of treatment for the

purposes of that article, I am satisfied that it is justified. I accept that there is a particular

interest in the early and expeditious disposal of public law cases, which form the vast

Page 31 ⇓

majority of judicial review applications. That includes an interest in avoiding protracting

proceedings about the validity of public law decisions unnecessarily. A means of achieving

that is by not imposing a requirement that an oral hearing be afforded in circumstances

where a judge has determined that no such hearing is required in order to ascertain whether

the tests for permission have been satisfied.

[48] I accept that justification for any difference of treatment must be scrutinised with

care where rights such as those protected by Article 6 are concerned. I do not accept that

the position of the adult in AP requires justification to be scrutinised with more care than it

would be in a case where the petitioner was a prisoner. If Article 14 affords protection on

the basis of different treatment as between litigants in different types of procedure, that

protection must be available to all the litigants in the relevant category on an equal footing.

If the difference between classes of litigants seeking remedies in different ways is an “other

status”, it is not one which requires that a difference in treatment must be justified by “very

weighty reasons”, as where the status follows from an immutable personal characteristic

such as race, colour, ethnic origin, sex, sexual orientation, nationality, or birth or adopted

status: see eg authorities cited in AL at paragraph 29.

[49] It seems to me that there is in any event a difficulty in characterising accurately the

difference of treatment complained of in the context of the challenges advanced in the

petitions. There is a difference of treatment simply in the requirement for a grant of

permission between petitioners for judicial review and pursuers and petitioners in other

forms of civil proceedings in Scotland. The petitioners do not complain of that, and, as I

understood Mr Leighton’s submission, accept that the introduction of a permission

requirement is justified. The complaint is actually about being subject to a regime where

access to a procedure for redress is governed by the particular provisions already discussed.

Page 32 ⇓

[50] Once it is accepted, as it is in this case, that there is justification for treating those

applying to the supervisory jurisdiction of the Court of Session differently from those

applying for redress through other forms of procedure, there does not appear to me really to

be a question as to the justification for the particular procedure employed separate from the

one I have already determined in favour of the respondents. Having approached matters in

that way, I do not require to reach a concluded view as to whether being a person seeking to

bring a petition for judicial review is an “other status” for the purposes of Article 14.

Other matters

[51] Although I do not require to reach a concluded view on the other matters that were

discussed in the course of the hearing, I record briefly what those other matters were for

completeness, and my conclusions.

[52] Had I been of the view that the potential absence of an oral hearing and/or appeal

were inconsistent with the petitioners’ rights under Article 6, I would have required to

consider whether the statutory provisions could be read down in the light of the obligations

in section 101 of the Scotland Act 1998 and section 3 of the Human Rights Act 1998.

Ms O’Neill did not submit that any particular provision ought to be read down. There was

a variety of ways in which the result the petitioners contended for could be achieved by

reading down. Mr Leighton submitted that there was no possible reading of the provisions

that would be compatible with the petitioners’ Convention rights. Any such reading would

be entirely inconsistent with the legislative intention. Ms O’Neill on the other hand referred

to DS v HM Advocate 2007 JC (PC) 1 and the Privy Council’s approach to section 275A(7) of

the Criminal Procedure (Scotland) Act 1995. There was in that provision a requirement that

Page 33 ⇓

the court proceed on the basis of a particular presumption. A Convention compatible

reading, however, required that the court disregard that presumption.

[53] In my view a reading down which would result in Convention rights compatibility

on the hypothesis that the petitioner’s challenges were well-founded would be achieved in

the following way. There would be no need to interfere with the provisions relating to the

first stage of the procedure. If there had been an oral hearing at that stage, there could, on

the petitioners’ analysis, be no incompatibility. If there had not, there would still be scope

for recourse to section 27C. Section 27C would come into play at the point at which there

had been a decision adverse to a petitioner on the papers, and the petitioner was dissatisfied

with that. The word “considered” in section 27C(3) would have to be read as “granted”. In

the context of the scheme, that would afford an oral hearing whenever one was requested,

and also, within the statutory scheme, a right of appeal.

[54] Where Convention rights are in issue, the starting point is section 3 of the Human

Rights Act, rather than section 101 of the Scotland Act, and the obligation to construe a

provision in an Act of the Scottish Parliament so far as it is possible to do so in a way that is

compatible with the Convention rights is a strong one: DS, Lord Hope, paragraphs 23 and

24. It does not appear to me that the reading I propose is any less “possible”, for the

purposes of section 3 of the Human Rights Act 1998, than that adopted by the Privy Council

in DS. I would have adopted that reading, and found the provisions to be within the

competence of the Scottish Parliament.

[55] In relation to the Rules of Court, Ms O’Neill submitted that I required to read the

Court of Session Act 1988 in a way compatible with the petitioners’ Convention rights.

Lords Ordinary in making decisions about permission must not act incompatibly with

Convention rights, by virtue of section 6 of the Human Rights Act 1998. The rules conferred

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a discretion on a Lord Ordinary which could be exercised compatibly with a petitioner’s

Convention rights. I understood her to be referring to the discretion as to procedure

provided in relation to the first stage of the procedure. If I were of the view that the

discretion was not sufficient to render the rules compatible, I should report the matter to the

Inner House. Where the lawfulness of an Act of Sederunt has been raised in proceedings, it

has been the practice of the Court to have the matter determined in the Inner House, either

because the matter arose in the context of an appeal, as in KP (Pakistan) v Secretary of State for

the Home Department [2012] CSIH 38 or on a report to the Inner House by the Lord Ordinary

as in Carron Co v Hislop 1930 SC 1050 and Taylor v Marshalls Food Group 1998 SC 841. In

Carron Lord Moncrieff had, at page 1053, expressed the view that it would be improper for a

single judge to entertain or decide a question as to the vires of an Act of Sederunt.

[56] Had I concluded that the statutory provisions required to be read as requiring the

Lord Ordinary to grant a request for an oral hearing under section 27C, I would have found

that nothing in the rules prevents the Lord Ordinary from adopting that course. The rules

are silent as to what the Lord Ordinary is to do when considering such a request. Rule 58.6,

which provides the discretion to which I understood Ms O’Neill to be referring, appears to

relate only to procedure under section 27B.

[57] Finally, Mr Leighton contended that it would be competent for me to reduce the

interlocutor of another Lord Ordinary, if I were to find that the legislation was outwith the

legislative competency of the Scottish Parliament. In doing so I would be making an

ancillary order, necessary to achieve justice for the petitioners. In cases not involving the

supervisory jurisdiction, and brought by way of summons, an interlocutor of the Court of

Session could be reduced where an interlocutor had been pronounced without any legal

basis. Ms O’Neill submitted that reduction of an interlocutor of a Lord Ordinary was

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incompetent in proceedings for judicial review. The supervisory jurisdiction did not extend

to the review of supreme courts, but existed to ensure that inferior tribunals and other

decision makers did not exceed their powers: Clyde and Edwards, Judicial Review,

paragraph 9.03; Moss’ Empires v Assessor for Glasgow 1917 SC (HL) 1; West v Secretary of State

for Scotland 1992 SC 385. In order to challenge an interlocutor of a Lord Ordinary which

could not be reclaimed, it was necessary to petition the nobile officium of the court: Helow v

Advocate General 2007 SC 303. In any event, even if the legislation were found not to be law,

the decisions of the Lords Ordinary would remain valid and effective. It would not be a

nullity, but would stand until altered by some competent process. She sought to draw an

analogy with the reasoning in Council of the Law Society of Scotland v Scottish Legal Complaints

Commission 2017 SC 718 at paragraph 75.

[58] I was not satisfied that it would be competent in these proceedings to reduce the

interlocutor of another Lord Ordinary. In West the Lord President examined the history of

the supervisory jurisdiction of the Court. He was examining the source of the jurisdiction

as it might be exercised in the first instance by a Lord Ordinary in a petition for judicial

review through the procedural mechanisms then prescribed by RCS 260B. He cited Sheriff

McNeill’s article, The Passing of the Scottish Privy Council 1965 JR 263, which explains that

before the union, the Privy Council had exercised an equitable jurisdiction, and the Court of

Session had exercised the functions of a court of law. No measure was enacted in 1708 to

distribute the jurisdiction formerly exercised by the Scots Privy Council. The Court of

Session therefore developed its own jurisdiction to provide an extraordinary equitable

remedy where none was available within the strict limits of the law. The Lord President

then went on to examine the limits of the supereminent jurisdiction of the Court as it

developed in the eighteenth, nineteenth and early twentieth centuries, observing, at page

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394, that Erskine’s prediction that “it will soon be considered as part of the province of the

court of session to redress all wrongs for which a peculiar remedy is not otherwise

provided” were an imperfect guide to what had followed. Although the emphasis of the

Lord President’s analysis was upon the nature of the supervisory jurisdiction, which is to

ensure that the inferior tribunal or other decision-maker keep within the limits of its

jurisdiction, rather than being one to review the merits, each case he considered involved

decision-making by a body which was inferior to the Court of Session. There is no

suggestion in West that the sort of exercise of the supervisory jurisdiction with which that

case was concerned might be exercised by one Lord Ordinary in respect of the interlocutor

of another. In articulating the jurisdiction the limits of which might be examined in the

exercise of the supervisory jurisdiction, he said, at page 413:

“The word “jurisdiction” best describes the nature of the power, duty or authority

committed to the person or body which is amenable to the supervisory jurisdiction of

the court. It is used here as meaning simply “power to decide”, and it can be applied

to the acts or decision of any administrative bodies and persons with similar

functions as well as to those of inferior tribunals.” (Emphasis added)

[59] The Court of Session does have power to provide a remedy in respect of an

irregularity in its own proceedings where there is no provision for reclaiming. It resides in

the nobile officium, which is a jurisdiction that may only be exercised by the Inner House. It

is reserved for cases in which other procedures provide no remedy. The nobile officium itself

is an example of the exercise by the Court of its supervisory jurisdiction, as Lord Nimmo

Smith, delivering the Opinion of the Court, explained in Helow at paragraph 1. No question

was raised by the court or any party in Helow as to the correctness or competency of the

procedure adopted by the petitioner in that case, which was to petition the nobile officium of

the Court of Session. The procedural background to that case is of some interest in the

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present context. The decision complained of was one taken by a Lord Ordinary on the

papers under section 101 of the Nationality, Immigration and Asylum Act 2004. Before that

statutory provision was made, decisions of the Immigration Appeal Tribunal refusing leave

to appeal to itself against the decision of an adjudicator were frequently the subject of

petitions for judicial review. Parliament then provided for a procedure for statutory review

on the papers by a Lord Ordinary. The provision of that alternative remedy resulted in the

necessity to pursue it rather than judicial review. What was alleged was apparent bias and

want of objective impartiality on the part of the judge. Lord Nimmo Smith, delivering the

Opinion of the Court, said this about the nature of the jurisdiction at paragraph 2:

“The nobile officium is a jurisdiction which, in a civil case, may only be exercised by

the Inner House of the Court of Session. It is

"the power of the Court of Session to create and exercise a remedy or grant

relief in circumstances in which there is no statutory or common law

provision which provides such a remedy or relief, but where the remedy or

relief is obviously necessary and not contrary to the existing law"

(Stair Memorial Encyclopaedia, volume 4, paragraph 4, sv "Civil Jurisdiction"). As Lord

Hope of Craighead said in Davidson v Scottish Ministers (No. 2) 2005 SC (HL) 7

(para 64):

"The general rule is that the power may be exercised in exceptional or

unforeseen circumstances to provide a remedy which will prevent the

oppression and injustice which would otherwise result from the lack of any

other remedy."

My view, on the basis of the limits of the supervisory jurisdiction as it may be invoked in

judicial review described in West, and the procedure adopted in Helow, is that if it were

necessary to set aside the interlocutor of a Lord Ordinary in relation to a decision on

permission, that would have to be done by way of a petition to the nobile officium. I express

no view as to whether setting aside of the interlocutor would necessarily follow in the event

that a statute governing procedure were found not to be law.

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Disposal

[60] I refuse the petitions. I sustain the first plea in law for the Lord Advocate in AP and

Burns, and the third plea in law for the Lord Advocate in Millbank. I repel the pleas in law

for the petitioner in each case, and the first plea in law for the Lord Advocate in Millbank.