Reclaiming Motions By April Prior, Gordon Burns And Joseph Millbank Against The Scottish Ministers And The Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Brodie,Lord President |
| Neutral Citation | [2020] CSIH 36 |
| Date | 30 June 2020 |
| Docket Number | P514/18, P511/18 and P1136/17 |
| Court | Court of Session |
| Published date | 30 June 2020 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 36
P514/18, P511/18 and P1136/17
Lord President
Lord Brodie
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motions by
(1) APRIL PRIOR; (2) GORDON BURNS; and JOSEPH MILLBANK
Petitioners and Reclaimers
against
(1) THE SCOTTISH MINISTERS; and (2) THE LORD ADVOCATE
Respondents
______________
Petitioners and Reclaimers: O’Neill QC, Leighton; Drummond Miller LLP
Respondents: C O’Neill (Sol Adv); Scottish Government Legal Directorate
30 June 2020
Introduction
[1] In these reclaiming motions, the petitioners maintain that sections 27B to 27D of the
Court of Session Act 1988 require a Lord Ordinary, when considering a request for a review
of an earlier refusal by a different Lord Ordinary of permission to proceed in a petition for
judicial review, to appoint an oral hearing. Without such a hearing, there is no avenue of
appeal.
2
[2] Before the Lord Ordinary, the petitioners had adopted a contrasting position. This
was that the legislation did allow a Lord Ordinary to refuse the request for a review, but that
this was contrary to the European Convention on Human Rights and thus outside the
legislative competence of the Scottish Parliament (Scotland Act 1998, s 29(2)(d)). They now
adopt that argument only as a “fall-back” position. On this alternative argument, they
would seek reduction of the statutory provisions and the rules of court, or at least a
declarator that they are unlawful. In respect of both the principal and the alternative
contentions, the petitioners seek reduction of the interlocutors in the original petition
processes which had refused their requests for a review.
[3] Issues of both substance and procedure arise. First, is it legitimate for the petitioners
to run an entirely different argument from that contained in their petitions and advanced
before the Lord Ordinary? Secondly, is it competent to review a judicial decision in a
petition process? In this context, if a separate action of reduction is required, does it follow
from the identification of an error of law that the interlocutors of the Lords Ordinary in the
original proceedings should be reduced? Thirdly, on a construction of the statutory
provisions, is it competent for the second Lord Ordinary to refuse a request for a review of a
refusal of permission without appointing an oral hearing? Fourthly, if the legislation does
provide that a petitioner may be refused permission without an oral hearing and hence a
right of appeal, is that compatible with the European Convention?
Statutory Provisions
Legislative history
[4] In September 2009, the Scottish Civil Courts Review (Vol I, p 265) recommended that:
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