PBW Law wins judicial review for Glasgow councillor

Cllr Fiona Higgins has won a judicial review against the Standards Commission for Scotland, represented throughout by Professor Peter Watson, Solicitor Advocate and Senior Partner at PBW Law.

The case concerned the Commission's refusal to admit thirteen documents Cllr Higgins wished to rely on at a disciplinary hearing into an alleged breach of the Councillors' Code of Conduct. Lord Sandison ruled that seven of these documents had been unlawfully excluded, identifying significant flaws in the Commission's reasoning for refusing them.

What the case was about

The dispute arose from disciplinary proceedings before the Standards Commission for Scotland, the body that adjudicates on alleged breaches of the Councillors' Code of Conduct. Ahead of her hearing, Cllr Higgins sought to rely on thirteen documents in her defence. The Commission refused to admit them. Rather than go into the hearing without that material, she petitioned the Court of Session for judicial review of the refusal.

The decision

Lord Sandison held that seven of the thirteen documents had been unlawfully excluded. In reaching that view he identified significant flaws in the Commission's reasoning for refusing them. The petition therefore succeeded in respect of those seven documents.

Professor Watson said the judgment carries wider significance for regulatory and disciplinary proceedings in Scotland. Questions of relevancy, he noted, are "ultimately matters of law," and courts should lean toward admitting evidence where genuine doubt exists. He added that the ruling also clarifies the availability of judicial review in this context, confirming that a later statutory right of appeal does not always offer an effective remedy where a party faces an unfair hearing before a tribunal.

Why relevancy matters

The first point is about the status of a tribunal's decision on evidence. Because relevancy is ultimately a question of law rather than a matter of discretion, a decision to exclude material is one a court can examine and, where it is wrong, correct. Where there is genuine doubt about whether a document is relevant, the approach is to lean toward admitting it rather than shutting it out. That is a meaningful protection for anyone preparing a defence, and it applies well beyond councillors: it is the same principle that governs misconduct hearings, professional regulatory proceedings and other disciplinary tribunals in Scotland.

Judicial review before the hearing

The second point concerns timing. Regulators sometimes argue that a party who objects to a procedural ruling should go through the hearing and then use the statutory right of appeal at the end. This judgment confirms that is not always an answer. Where a procedural decision would leave a party facing an unfair hearing, the existence of an appeal after the event does not necessarily provide an effective remedy, and judicial review can be available before the hearing takes place.

What this means if you are facing disciplinary proceedings

For councillors, police officers and professionals subject to regulatory or disciplinary regimes in Scotland, the case is a reminder that decisions about evidence made before a hearing are not beyond challenge. If a tribunal refuses to admit material you consider central to your defence, take advice at that stage rather than waiting for the outcome. The point at which a document is excluded may be the point at which the fairness of the whole hearing is decided.

PBW Law acts for individuals in regulatory, disciplinary and misconduct proceedings across Scotland, and defends clients facing criminal allegations in Scotland's courts. You can read more on our police law and criminal defence pages, or call 0141 439 1990 to speak to a solicitor.