Blair v Lochaber District Council
| Jurisdiction | Scotland |
| Judgment Date | 30 September 1994 |
| Date | 30 September 1994 |
| Court | Court of Session (Outer House) |
Outer House of the Court of Session
Before Lord Clyde
Scots law - local authority - employment - whether suspension amenable to judicial review
Where the chief executive of a local authority alleged that his employers had acted ultra vires in suspending him, it was incompetent for him to seek judicial review of their decision, because the issue was a contractual rather than an administrative dispute.
Lord Clyde so held in the Outer House of the Court of Session, dismissing as incompetent a petition for judicial review brought by David Blair, seeking suspension of a decision by Lochaber District Council to suspend him from his duties as their chief executive.
Mr Gordon Reid, QC and Ms Isabella Ennis for Mr Blair; Mr Andrew Hardie, QC, Dean of the Faculty of Advocates, Mr Lawrence Murphy and Mr Iain McLean for the respondents.
LORD CLYDE said that the petitioner argued that the respondents' decision was ultra vires as being in breach of certain provisions of the Local Government (Scotland) Act 1973, including Schedule 7, and of their standing orders.
This was a case where an employee sought judicial review of a decision taken by his employer. It was an area of law which had given rise to some difficulty in the past.
It had been with the express purpose of removing uncertainty that the matter had been explored in detail in West v Secretary of State for ScotlandTLR (The Times June 11, 1992; 1992 SLT 636) where the court had said that contractual rights and obligations, such as those between employer and employee, were not as such amenable to judicial review.
The cases in which the exercise of the supervisory jurisdiction was appropriate involve a tripartite relationship, between a person or body to whom the jurisdiction, power or authority had been delegated or entrusted, the person or body by whom it had been delegated or entrusted and the person or persons in respect of or for whose benefit that jurisdiction, power or authority was to be exercised.
If, as the Dean submitted, the tripartite test was conclusive in the context of employment contracts, then the petitioner failed on competency. Mr Reid presented an altogether distinct basis for his case. He submitted that the existence of the tripartite relationship was not an essential feature; that in the present case there was an excess of power in the discharge of an administrative function; and that where a public authority made an...
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