Judicial review in the Devolved Nations: a comparative analysis of the judicial review landscape in Scotland, Wales, and Northern Ireland

Abstract

Following referenda in the 1990s in Scotland, Wales, and Northern Ireland, the devolution settlements have become a core constitutional feature of the United Kingdom. By enacting different policies, the three devolved nations by extension alter administrative decision-making in those policy areas, bringing potential opportunities to challenge through judicial review. Yet, in Wales, this has not developed into a culture of judicial review litigation – whereas Scottish and Northern Irish litigants readily avail of the opportunity to judicial review.

This project is a significant extension of previous research in England and Wales,1 and Wales alone2 on the effects of judicial review. The research described in the following thesis finds a large divergence in the number of judicial review claims across Scotland, Wales, and Northern Ireland. It is found that Wales has a strikingly low number of judicial review claims that proceed to a substantive hearing, in contrast Scotland sees four times as many judicial review hearings, while Northern Ireland has around nine times as many substantive hearings as Wales.

In order to answer why there is such a large divergence in the volume of judicial review across the devolved nations, this project asks, “Are more judicial reviews a symptom of good, or poor, access to justice?”. The thesis takes a mixed-method approach to answer that question. Firstly, an analysis of 800+ judgments of judicial review cases across the three nations over a ten-year period, analysed alongside official statistics and reports. Secondly, through a series of questionnaire and interviews with legal professionals for qualitative data not readily found from case judgments and reports.

The analysis of the state of judicial review across the devolved nations continues; by looking at the procedural differences, if any, between the nations’ judicial review policy, differences in devolved competencies, and looking at various access to justice factors such as the availability of legal advice and legal aid, to explain the difference in rate of judicial review.

This research finds that, despite some local idiosyncrasies, the procedure and mechanism for judicial review across the devolved nations are broadly the same. In answering the potential reasons behind the divergence in the volume of judicial review, it finds that access to justice issues – including legal consciousness and the availability of legal aid – combined with differences in local policy between Scotland, Wales and Northern Ireland in responses to challenges to administrative decision-making, have a greater impact on the volume of challenges through judicial review.

Date of Award	May 2025
Original language	English
Supervisor	Mark Simpson (Supervisor) & Grainne McKeever (Supervisor)