Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Eba, Re Judicial Review [2010] ScotCS CSOH_45 (31 March 2010)
URL: http://www.bailii.org/scot/cases/ScotCS/2010/2010CSOH45.html
Cite as: [2010] ScotCS CSOH_45, [2010] CSOH 45, 2010 SCLR 345, 2010 SLT 547, 2010 GWD 14-253
[New search] [Help]
|
OUTER HOUSE, COURT OF SESSION
[2010] CSOH 45
|
|
|
P/1253/09
|
OPINION OF LORD GLENNIE
in the petition of
BLAJOSSE CHARLOTTE EBA
Petitioner;
for
Judicial review of the refusal of an appeal by the petition to the First-tier Tribunal Social Entitlement Chamber dated 10 November 2008 and the refusal of permission to appeal by the Upper Tribunal dated 6 February 2009
ญญญญญญญญญญญญญญญญญ________________
|
Act: J Mitchell QC, Bryce; Drummond Miller LLP
Alt: Collins; Office of the Solicitor to the Advocate General for Scotland
31 March 2010
Introduction
[1] On 23
November 2007, the petitioner
claimed disability living allowance. That claim was refused on 11 February 2008. Her appeal to the Social Security Appeal Tribunal
was heard in November 2008, by which time the functions of the Social Security
Appeal Tribunal had been transferred to the First-tier Tribunal Social
Entitlement Chamber, a chamber within the Tribunals system established by the
Tribunals, Courts and Enforcement Act 2007. The First-tier Tribunal refused
her appeal. She applied to the First-tier Tribunal for permission to appeal to
the Upper Tribunal. That application was refused by the First-tier Tribunal on
27 January 2009. She renewed her application to the Upper
Tribunal. On 6 February 2009, DJ May QC, sitting as a Judge of the
Upper Tribunal, refused that renewed application for leave to appeal. In this
petition, the petitioner, having exhausted her rights to appeal within the
Tribunals system, seeks judicial review of the decision(s) of the First-tier
Tribunal and/or of the refusal of permission to appeal by the Upper Tribunal. However,
although the challenge in the petition is to the decisions of both the
First-tier and Upper Tribunal, the discussion before me has proceeded upon the
basis that it is the challenge to that of the Upper Tribunal which is crucial
to the petitioner's success - on the basis that there was an alternative remedy
against the decision of the First-tier Tribunal, namely an appeal with leave to
the Upper Tribunal, until this path was blocked by the Upper Tribunal's refusal
of leave.
[2] The respondent to the petition is the Advocate General for Scotland, representing the Department for Work and Pensions.
He contends that the Upper Tribunal is not amenable to judicial review save in
exceptional circumstances, the expression "exceptional circumstances" being
used as a shorthand for cases where there has been an excess of jurisdiction "in
the pre-Anisminic sense" - c.f. Anisminic v Foreign
Compensation Commission [1969] 2 AC 147 - or a "collapse of a fair
procedure". I take these expressions from para.4 of the respondent's Supplementary
Note of Argument. At an early stage in these proceedings, it was thought that the
respondent's argument would be that the Upper Tribunal was not amenable to
judicial review at all, so that the petition was incompetent; and a hearing was
fixed to determine that question. Parties were not clear whether the order
made at that stage was a "First Order" in terms of Rule of Court 58.7 - for my
part, I do not see why it should not be so regarded - but I do not think that
that matters. In light of the submissions now made on behalf of the respondent,
it was agreed that the issue as now focused is one of relevancy rather than
competency, and the arguments were advanced before me on that basis.
[3] The Upper Tribunal has been served with the petition but has
indicated that it does not wish to appear or be heard on it. It has made
clear, however, that it would be willing to assist on any questions of fact
which might arise. In the event, it has not been necessary to seek such
assistance.
[4] The petitioner accepts that she has not pled herself within "exceptional
circumstances" as that term is used by the respondent (see para.[2] above);
and, accordingly, that, if the respondent's argument is accepted, the petition
falls to be refused. If, on the other hand, the respondent's argument fails,
then there will require to be further procedure to determine the merits of the
petitioner's case.
[5] The respondent's primary argument focuses on the structural
features of the Upper Tribunal as a judicial body, in particular its
constitution and powers and its relationship to the Court of Session, rather
than on the nature of the particular act or decision sought to be reviewed or
the subject matter with which that act or decision is concerned. They also
involve a detailed consideration of the decision of the Divisional Court in R (on the application of Cart, U & XC) v
The Upper Tribunal and Special Immigration Appeals Commission (unreported, 1 December 2009, [2009] EWHC 3052) ("Cart"). It is
convenient, therefore, before considering that argument in any detail, to set
out the relevant provisions of the Tribunals, Courts and Enforcement Act 2007,
to identify the organisation and practice so far developed within the Tribunals
structure brought into being by the Act, and to summarise the decision in Cart
and the reasons for that decision.
The Tribunals, Courts and Enforcement Act 2007
(i) overview
[6] As is explained by Laws LJ in Cart (at para.9), the
Tribunals, Courts and Enforcement Act 2007 was enacted to gather into a unified
structure disparate jurisdictions previously exercised by a wide variety of
statutory tribunals throughout the United Kingdom. That
structure involves the unification of mechanisms for
appealing or reviewing decisions of tribunals. It provides for a
comprehensive two tier structure, comprising a First-tier Tribunal (s.3(1)) and
an Upper Tribunal (s.3(2)). Both the First-tier Tribunal and the Upper
Tribunal are presided over by the Senior President of Tribunals, the holder of
an office created by s.2(1) of the Act. The current Senior President of
Tribunals is Sir Robert Carnwath, a Lord Justice of Appeal in England and Wales. S.3(5) of the Act provides that the
Upper Tribunal is to be "a superior court of record". Although the Upper
Tribunal has a limited first instance jurisdiction, its main function is to
exercise an appellate jurisdiction over decisions of the First-tier Tribunal.
It also has a judicial review jurisdiction.
(ii) judges and other members of the Tribunals
[7] Ss.4-8 of the Act deal with membership and composition of the
Tribunals. I need not set out the terms of s.4, which deals with membership of
the First-tier Tribunal, since it is not contended that the First-tier Tribunal
has any special status relevant to the disposal of this petition. Membership
of the Upper Tribunal, whether as a judge or simply as a member, is dealt with
in ss.5 and 6. S.5(1) lays down who is a judge of the Upper Tribunal, while
s.5(2) deals with who is a member. I need not spend time on members as opposed
to judges. The combined effect of s.5(1)(g) and s.6 is to make all, or almost
all, judges in England and Wales, Northern Ireland and Scotland, though not
deputies or temporary judges, judges of the Upper Tribunal (as well as of the
First-tier Tribunal). In England and Wales, that includes judges of the Court of Appeal, High Court and County
Court as well as district judges. In Scotland it includes
Court of Session judges and sheriffs. But, as s.5 makes clear, the categories
of persons who may sit as judges of the Upper Tribunal are extensive. They
include, for example, those who were previously senior immigration judges
(s.5(1)(d)(ii)) and Social Security Commissioners (s.5(1)(e) and (f)).
(iii) organisation of the First-tier and Upper Tribunals
[8] S.7 of the Act provides for the organisation of the First-tier
Tribunal and the Upper Tribunal into a number of Chambers. This is to be done
by the Lord Chancellor with the concurrence of the Senior President of
Tribunals. The functions formerly exercised by a large number of tribunals
have already been brought within the new Tribunal system and assigned to the
appropriate Chamber. The process is on-going. I refer later in this Opinion
to the current state of affairs.
(iv) reviewing and appealing decisions
[9] Ss.9-14 of the Act provide both for the review of decisions of
the First-tier Tribunal and of the Upper Tribunal, and also for appeals to the
Upper Tribunal and to the courts. These provisions are of central importance
to the arguments presented in this case.
(v) power to review own decisions
[10] Ss.9 and 10 respectively allow the
First-tier Tribunal and the Upper Tribunal, on their own initiative or on the
application of a party, and subject to such Tribunal Procedure Rules as may
have been made, to review decisions made by them in a
case, other than "excluded" decisions. For present purposes, I need not
trouble with the meaning of "excluded decision" in this context.
(vi) appeals from the
First-tier Tribunal to the Upper Tribunal
[11] In
addition, as described below, there is a restricted right of appeal both from
the First-tier Tribunal to the Upper Tribunal and from the Upper Tribunal to
the courts. In both cases an appeal is permitted only on points of law.
(vii) appeal to the Upper Tribunal
[12] Under s.11, a party may appeal
to the Upper Tribunal, with leave either of the First-tier Tribunal or of the
Upper Tribunal, on any point of law arising from a decision of the First-tier
Tribunal (other than an excluded decision). The powers of the Upper Tribunal
hearing an appeal (set out in s.12) are very wide. If it finds that an error
of law has been made by the First-tier tribunal in reaching its decision, it
may (but need not) set aside the decision of the First-tier Tribunal; and, in
such a case, if it does set it aside, it must either remit the case to the
First-tier Tribunal with directions for its reconsideration (which may include
directions that it be heard by a differently constituted tribunal), or re-make
the decision itself.
(viii) appeals from the Upper Tribunal to the courts
[13] There is a further right of
appeal, again with leave of the Upper Tribunal or the relevant appellate court,
to the Court of Session (and, in England and Wales and in Northern Ireland, to the Court of Appeal) on
any point of law arising from a decision made by the Upper Tribunal (other than
an excluded decision): s.13. Excluded decisions, defined in s.13(8), include a
decision of the Upper Tribunal refusing leave to appeal to it from a decision
of the First-tier Tribunal: s.13(8)(c). There is therefore no appeal to the
Court of Session (or any other appellate court) from the decision complained of
in a case such as the present.
[14] Two further points should be
noted in connection with this right of appeal. First, it is for the Upper
Tribunal, before deciding an application for leave to appeal from it to the
court, to determine in terms of s.13(11) which court is the relevant appellate
court. The test it must apply is which court - the Court of Session, the Court
of Appeal in England and Wales or the Court of Appeal in Northern Ireland - appears to it to be the
"most appropriate". Second, in respect of certain appeals from the Upper
Tribunal where the relevant appellate court (as determined by the Upper
Tribunal) is the Court of Appeal in England and Wales or the Court of Appeal in
Northern Ireland, orders may be made restricting the right of appeal to cases
where the proposed appeal would raise some important point of principle or
practice, or there is some other compelling reason for the relevant appellate
court to hear the appeal. There is no comparable provision for appeals to the
Court of Session.
(ix) the judicial review functions of the Upper Tribunal
[15] Ss.15-21 of the Act confer upon the Upper Tribunal a judicial
review jurisdiction (its second main function). But the exercise of that
jurisdiction differs according to whether the case arises under the law of England and Wales or Northern Ireland, on the one hand, or the law of Scotland, on the other.
(x) the Upper Tribunal's original judicial review jurisdiction for England and Wales and Northern Ireland
[16] S.15 of the Act gives the Upper Tribunal an original jurisdiction, in cases
arising under the law of England and Wales or under the law of Northern
Ireland, and subject to the limits on the exercise of the power contained in
s.18, to grant the following relief, namely: (a) a mandatory order (or, in
Northern Ireland, mandamus); (b) a prohibiting order (prohibition); (c) a
quashing order (certiorari); (d) a declaration; and (e) an injunction. In
addition, in such cases, the Upper Tribunal may award damages arising from any
matter to which the application relates: s.16(6). The most important limit on
the exercise of the judicial review jurisdiction under s.15 is that the judge
presiding at the hearing of the application is either (a) a judge of the High
Court or the Court of Appeal in England and Wales or Northern Ireland, or a
judge of the Court of Session, or (b) such other persons as may be agreed from
time to time between the Lord Chief Justice, the Lord President, or the Lord
Chief Justice of Northern Ireland, as the case may be, and the Senior President
of Tribunals. In considering the application, the Upper Tribunal must apply
the same principles as would be applied by the High Court on a similar
application to it. Any relief granted by the Upper Tribunal in exercise of
that jurisdiction has the same effect, and is enforceable in the same way, as
if granted by the High Court. The application to the Upper Tribunal for
judicial review may only be made with leave of the Upper Tribunal: s.16(2). An
appeal lies to the Court of Appeal, which may go on to decide the judicial
review application itself.
[17] The Upper Tribunal does not have
an original judicial review function in cases arising under Scots law.
(xi) transfer of judicial review applications to the Upper Tribunal in England and Wales, Northern Ireland and Scotland
[18] In addition to the original
judicial review jurisdiction given to the Upper Tribunal, there are
circumstances in which the High Court (in England and Wales and Northern Ireland) and the Court of Session (in Scotland) may, or, in some cases, must,
transfer judicial review applications from the court to the Upper Tribunal.
The circumstances are similar in the different jurisdictions. So far as
concerns cases under the laws of England and Wales and Northern Ireland, the
power or duty to transfer is given by amendments to the Supreme Court Act 1981
and the Judicature (Northern Ireland) Act 1978.
[19] Cases under Scots law are dealt
with in s.20 of the Act, which provides for both mandatory and discretionary
transfers of judicial review from the Court of Session to the Upper Tribunal.
The section makes it clear - in the discretionary case by Condition 3 and in
the mandatory case by sub-s.(6) - that there can be no such transfer when the
subject matter of the application is a devolved matter. Subject to that, where
the application does not seek anything other than an exercise of the
supervisory jurisdiction (Condition 1) and does not call into question a
decision under the immigration and nationality Acts (Condition 4), the Court of
Session must transfer the application to the Upper Tribunal where the
application falls within a class specified by an Act of Sederunt; and may
transfer the application where it does not fall within a class so specified.
To date only one relevant Act of Sederunt has been made, namely Act of Sederunt
(Transfer of Judicial Review Applications from the Court of Session) 2008 (SSI
2008/357), which provides that applications which challenges "a procedural
decision or a procedural ruling of the First-tier Tribunal" must be transferred
to the Upper Tribunal. It has been held in Currie, Petitioner 2010 SLT 71 (Lord Hodge) that that extends to procedural
omissions or oversights giving rise to unfairness.
[20] It is important to note that
the judicial review jurisdiction of the Upper Tribunal, whether as part of its
original jurisdiction in cases under the law of England and Wales and Northern
Ireland, or as part of its transferred in jurisdiction under those laws and
also under the law of Scotland, is not limited to applications for judicial
review of acts or decisions by the First-tier tribunal, nor is it limited to
cases where the subject matter of the complaint has been brought within the new
Tribunal system. This is not the adventitious result of ill-considered
drafting, but reflects a deliberate policy decision to provide the mechanism
for the transfer in due course to the Upper Tribunal of most judicial review
applications not involving devolved matters.
[21] In exercising its judicial
review powers on a referral from the High Court or from the Court of Session,
the Upper Tribunal has the same powers as the referring court and must apply
the same principles as would be applied by the referring court; and its orders
have the same effect as corresponding orders made by the referring court. There
is, however, one difference between the exercise of its original judicial
review jurisdiction and its judicial review powers on a referral from the High
Court as distinct from a referral from the Court of Session. I have already
noted that when the Upper Tribunal is exercising its original jurisdiction
under s.15 of the Act, the judge presiding must be a judge of the High Court or
of the Court of Session or such other person as may be agreed: s.18(8). In the
case of a referral from the High Court or Court of Session, however, whilst
that is likely in practice be the position, there is no such requirement in the
Act.
(xii) rule-making powers
[22] As is to be expected, the
Tribunal has rule-making powers. These are set out in ss.22 and 23 of the
Act. Tribunal Procedure Rules are made by the Tribunal Procedure Committee.
Directions as to practice may be given by the Senior President of Tribunals and
the individual Chamber Presidents.
(xiii) supplementary powers of the Upper Tribunal
[23] Ss.25-27 of the Act are entitled
"Supplementary powers of Upper Tribunal". In relation to the attendance and
examination of witnesses, the production and inspection of documents, and all
other matters incidental to its functions, the Upper Tribunal has the same
powers, rights, privileges and authority as the High Court and Court of Session
respectively: s.25. These include, for example, powers to punish for contempt
of court. S.26 is concerned with sitting places, enabling a case to be heard
in one part of the United
Kingdom though
it arises under the law of another part. This is for administrative convenience
only, and does not affect the substantive law to be applied to the question
before the tribunal. Finally, s.27 provides for enforcement. Sums payable
pursuant to decisions of the First-tier Tribunal or Upper Tribunal made in
England and Wales or in Northern Ireland are generally recoverable as if
payable under an order of a county court or the High Court, whilst an order for
payment made in Scotland is enforceable as if it were an extract registered
decree arbitral bearing a warrant for execution issued by the sheriff court of
any sheriffdom in Scotland.
The Tribunal system under the Act - organisation and practice
[24] I have already noted that the
overall aim of the Act is to bring under one roof a wide range of previously
independent tribunals. This is achieved by giving the Lord Chancellor power,
under s.30, to bring within the system established by the Act the functions of
tribunals already in existence before the Act came into force. The tribunals
whose functions may be transferred in this way are listed in Schedule 6 to the
Act; but, with certain exceptions, a function of a tribunal may not be
transferred in this way if, or to the extent that, the provision conferring the
function is or would be within the legislative competence of the Scottish
Parliament: see s.30(5)(a) ("a devolved matter"). For example, although
generally the functions of appeal tribunals constituted under the Social
Security Act 1998 are, or are to be, transferred to the First-tier Tribunal,
and the functions of Social Security Commissioners are, or are to be,
transferred to the Upper Tribunal, that is not so as regards their
jurisdictions in Scotland in respect of the recovery of National Health Service
charges under the Health and Social Care (Community Health and Standards) Act
2003, those jurisdictions in Scotland being ones for which the Scottish
Parliament has responsibility. Similarly, mental health tribunals in Scotland will not fall within the new
Tribunal system. In addition, the functions of an adjudicator under s.5 of the
Criminal Injuries Compensation Act 1985 (in so far as they relate to Scotland) may be transferred only with
the consent of the Scottish Ministers. As a consequence, the Act does not in
fact result in a scheme capable of providing exhaustively for the functions of
all pre-existing tribunals on a consistent United Kingdom wide basis. However, as regards matters which
are not devolved matters, it is clear that the appeal provisions of the Act
give effect to the strategic reorganisation of the law administered by
statutory tribunals in Scotland just as much as that administered by statutory
tribunals elsewhere in the United Kingdom.
[25] Exercising the powers given by
ss.7 and 30 of the Act, the Lord Chancellor has already brought a large number
of pre-existing tribunals within the new Tribunals system set up by the Act - a
process which is by no means complete - and, with the concurrence of the Senior
President of Tribunals, has organised both the First-tier Tribunal and the
Upper Tribunal into a number of chambers.
[26] The First-tier Tribunal is
presently organised into six Chambers: the Tax Chamber; the General Regulatory
Chamber; the Health, Education and Social Care Chamber; the Social Entitlement
Chamber; the War Pensions and Armed Forces Compensation Chamber; and (since 15
February of this year, as foreshadowed in argument before me) the Immigration
and Asylum Chamber. Two of these, War Pensions etc. and Health etc., do not
extend to Scotland at all. The General
Regulatory Chamber exercises jurisdiction in Scotland in relation to some but not all of its
functions. The jurisdictions of the Social Entitlement, Tax, and Immigration
and Asylum Chambers extend to Scotland in their entirety. The Social Entitlement Chamber was
established in November 2008 and deals with matters formerly dealt with by the
Asylum Support Tribunal, the Social Security and Child Support Appeal Tribunals
and the Criminal Injuries Compensation Panel. The Tax Chamber was established
in April 2009 and deals with matters formerly dealt with by the General and
Special Commissioners of Income Tax, the VAT and Duties Tribunal, and Tribunals
under ss.704 and 706 of the Taxes Act. The General Regulatory Chamber was
established in September 2009 and deals with matters formerly dealt with by the
Consumer Credit Appeals Tribunal, Estate Agents Appeals Panel, Transport
Tribunal, and, since January 2010, the Gambling Appeals Tribunal, Information
Tribunal and Immigration Services Tribunal.
[27] The Upper Tribunal has four
Chambers, namely the Administrative Appeals Chamber, the Tax and Chancery
Chamber, the Lands Chamber and the Immigration and Asylum Chamber. The
jurisdiction of the Lands Chamber does not extend to Scotland. The Administrative Appeals Chamber was
established in November 2008. In Scotland it deals with matters formerly dealt
with by the Social Security and Child Support Commissioners, and some other
matters formerly dealt with by the Transport Tribunal (from September 2009) and
the Information Tribunal (from January 2010), as well as appeals from the
First-tier General Regulatory Chamber and the Pensions Appeal Tribunal
(Scotland). The Tax and Chancery Chamber was established in April 2009 and
deals with onward appeals from the First-tier Tax Chamber and some complex
first instance appeals. I was told that from April 2010 it will also deal with
matters formerly dealt with by the Financial Services and Markets Tribunal and
the Pensions Regulator Tribunal.
[28] There are at present two full
time judges of the Upper Tribunal Administrative Appeals Chamber sitting in
Scotland (Judge May QC and Judge Gamble), both qualified in Scots law, and four
part time judges, of whom three are qualified in Scots law whilst the other
(who is qualified in English law) has sat in Scotland as a full time Social
Security Commissioner. I was told that it is anticipated that judicial review
applications transferred to the Upper Tribunal Administrative Appeals Chamber,
will be determined by Scottish qualified judges. I was also told that Court of
Session judges may sit in the Upper Tribunal Administrative Appeals Chamber, as
judges by request (i.e. by request to the Lord President from the Chamber
President), for example to hear transferred judicial review cases. None have
so far been called upon to do so. However, five Court of Session judges have
been assigned to the Tax Chamber of the Upper Tribunal.
[29] The Upper Tribunal sits in a
number of different places throughout the United Kingdom (including Edinburgh). Wherever it sits, it may decide cases
arising under the law of any part of the United Kingdom: s.26 of the Act. I was told by Mr
Collins, who appeared on behalf of the respondent, that his understanding was
that the location of which any particular hearing takes place is a matter for
judicial determination (i.e. determination by the relevant Tribunal), but that
issues of Scots law will normally be determined by judges qualified in Scots
law, either sitting alone or as part of a two or three judge panel.
[30] In the present case, the
petitioner's appeal from the decision to refuse her claim was made to the
Social Security Appeal Tribunal. By the time it came to be heard on 10 November 2008, that had become part of the
First-tier Social Entitlement Chamber. The refusal of leave of which complaint
in made in this petition was a refusal of leave to appeal to the Administrative
Appeals Chamber of the Upper Tribunal.
The decision in Cart
[31] It is appropriate at this stage
to consider in some detail the decision on the Divisional Court in Cart. It was much relied upon
by the respondent in this case. It is a lengthy and closely reasoned decision
and I make no apologies for attempting to summarise the reasoning at some
length since it forms the basis of a large part of the respondent's submissions
in this case, and also forms part of the background against which those for the
petitioner must be considered.
[32] The question before the court in
Cart was whether the supervisory jurisdiction of the High Court, exercisable by way of
judicial review, extended to such decisions of the Upper Tribunal (UT) as were
not amenable to any form of appeal. The decision of the Upper Tribunal which
was in issue was its refusal of permission to appeal to itself, on a particular
ground, against a decision of the First-tier Tribunal relating to child
maintenance payable by the claimant, Mr Cart. A similar question arose in
connection with the Special Immigration Appeals Tribunal (SIAC). The court
held that SIAC was
amenable to judicial review in both the Anisminic and pre-Anisminic sense
(para.82), though it considered that the consequences of that decision were
limited by the discretionary aspects of the judicial review jurisdiction. As
regards the Upper Tribunal, the court held that it was not susceptible to
judicial review in the Anisminic sense. As Laws LJ put it at para.94:
"It is not amenable to judicial review for excess of jurisdiction in the second sense: the case where, albeit acting within the field ascribed to it, the court perpetrates a legal mistake. It is a court possessing the final power to interpret for itself the law it must apply. ... UT's role at the apex of a new and comprehensive judicial structure ought to be respected and given effect. Its judicial review function is highly material to that role's status and authority. And it must, I think, be obvious that judicial review decisions of UT could not themselves be the subject of judicial review by the High Court; but I cannot see that UT might be reviewable when acting under TCEA [the Act] ss.11-12 but not when acting under ss.15-21."
He explained at para.99 that the Upper Tribunal was subject to judicial review by the High Court only
"in the grossly improbable event that [it] were to embark upon a case that was frankly beyond the four corners of its statutory remit - the first sense of excess of jurisdiction - ... [and] where there has been a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal."
In the result, he regarded the possibility of judicial review in such circumstances as "limited, and I apprehend theoretical": para.100.
[33] It is necessary for the purpose of the
argument before me to follow the line of reasoning that drove the court in Cart
to that conclusion. I need not consider the SIAC part of the judgment further
at this stage. I shall, in the main, limit my consideration of Cart to
those parts of the judgment which deal with the Upper Tribunal.
[34] The leading judgment was given by Laws LJ,
with whose judgment Owen J agreed. He first sought to identify the functions
of the Upper Tribunal. He noted that the first of Upper
Tribunal's principal functions was to determine appeals on points of law from
the First-tier Tribunal ("FTT"), whilst its other principal function was to
exercise a judicial review jurisdiction. He also noted the provisions of the
Act ("TCEA") relating to the composition of the Upper Tribunal. As regards its
appellate jurisdiction, he identified the six Chambers of the First-tier
Tribunal and added this comment in paras.12-13:
"12. ... But this short list conceals the great range of tribunals existing pre-TCEA whose jurisdiction has been transferred to FTT by orders made by the Lord Chancellor under TCEA s.30. Though the War Pensions and Armed Forces Compensation Chamber succeeds only to the jurisdiction of the Pension Appeals Tribunal (England and Wales), the Health, Education and Social Care Chamber succeeds to the jurisdiction of thirteen previous tribunals (six of them effective from January 2010). They include tribunals which dealt with mental health, estate agents, charities and transport. The Tax Chamber takes over from the General and Special Commissioners of Income Tax and the VAT & Duties Tribunal. The Social Entitlement Chamber succeeds to the Social Security and Child Support Appeal Tribunals, the Criminal Injuries Compensation Panel, and the Asylum Support Tribunal. The Immigration and Asylum Chamber will take over from the AIT.
- Cases where there was a right of appeal to another tribunal (e.g. from the Social Security Appeals Tribunal to the Social Security Commissioners). Here a further right of appeal would generally lie to the Court of Appeal, not the High Court.
- Cases where there was a right of appeal to the High Court (e.g. from the VAT & Duties Tribunal and the Special Commissioners). Here also there was generally a further right of appeal to the Court of Appeal.
- Cases where there was a right of appeal to the Court of Appeal direct (e.g. the Financial Services and Markets Tribunal).
- Cases where there was no right of appeal at all (e.g. the Criminal Injuries Compensation Appeal Panel), in which case judicial review would generally be available of the tribunal's decision.
Now there is a unified appeal structure. It is not yet complete. As I have indicated, some transfers to FTT are scheduled for 2010. In due course further chambers may be established. We are for instance told that a FTT Lands Chamber is in contemplation. But in any event it is clear that the appeal provisions of TCEA give effect to a strategic reorganisation of the law administered by statutory tribunals."
As is already clear, some parts of this summary do not apply to Scotland, because of the exclusion therefrom of matters within the legislative competence of the Scottish Parliament. That said, however, it is as true of Scotland as it is of other parts of the United Kingdom that the provisions of the Act "give effect to a strategic reorganisation of the law administered by statutory tribunals."
[35] The facts of the Cart case are set out in paras.26 and
27 of the judgment. Mr and Mrs Cart separated and Mrs Cart subsequently
petitioned for divorce. Periodical payments were agreed. Mrs
Cart subsequently made an application to the Child Support Agency for child
maintenance in October 2004. In August 2006 Mrs Cart applied to the Child
Support Agency for a variation direction in August 2006. This
application was not notified to Mr Cart by the Secretary of State as it should
have been. Pursuant to the application a variation direction was given on 17 August 2006. When Mr Cart had notice that a direction had been
made, he sought a revision. That was refused. He appealed to what is now the
First-tier Tribunal. The appeal was dismissed in October 2007. He sought
permission to appeal. The Upper Tribunal granted limited permission on three
grounds, but refused permission on the fourth, which was a complaint about the
Secretary of State's failure to give notice of the variation application. On
30 January 2009 the Upper Tribunal (Senior President Carnwath LJ and Judge
Jacobs), having heard argument on the three grounds for which permission had
been given and reserved judgment on those, declined permission to re-open the
fourth ground on which permission had earlier been refused.
[36] The defendants' primary argument was that
the Act designated the Upper Tribunal as a "superior court of record" and, as
such, it was immune from the judicial review jurisdiction. That argument was
rejected on the ground that the judicial review jurisdiction of the courts
could not be ousted or excluded by implication - the formula "superior court of
record" says nothing on its face about judicial review, so any exclusion would
have to be implicit - but only by clear wording: see paras.28-33. But Laws LJ went on
to consider the reasons for that. He explained (at para.34) that the court's
"ingrained reluctance to countenance the statutory exclusion of judicial
review" had its genesis in the fact that judicial review was "a principal engine
of the rule of law". This in
turn led him to ask what was meant by the rule of law, not as a general concept
but for the purpose of the case before the court. I quote from paras.36-39:
...
38. If the meaning of statutory text is not controlled by such a judicial authority, it would at length be degraded to nothing more than a matter of opinion. Its scope and content would become muddied and unclear. Public bodies would not, by means of the judicial review jurisdiction, be kept within the confines of their powers prescribed by statute. The very effectiveness of statute law, Parliament's law, requires that none of these things happen. Accordingly, as it seems to me, the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it ... The requirement of an authoritative judicial source for the interpretation of law means that Parliament's statutes are always effective; that is another.
39. As I have said, the paradigm for such an authoritative source is the High Court, which is independent of the legislature, the executive, and any other decision-makers acting under the law; and is the principal constitutional guardian of the rule of law. ... To offer the same guarantee of properly mediated law, any alternative source must amount to an alter ego of the High Court; and indeed there are instances where the authoritative source is another court, such as the Court-Martial Appeal Court and the Restrictive Practices Court (see the reference at paragraph 71 below to R v Cripps, ex parte Muldoon [1984] 1 QB 68). But the general principle is clear. The rule of law requires that statute should be mediated by an authoritative and independent judicial source; and Parliament's sovereignty itself requires that it respect this rule."
After pointing out that Parliament may, of course, modify the procedures by which statute law is mediated, Laws LJ said this (at paras.41-42):
He then examined (at paras.43 - 52) the historical relationship between the King's Bench and other courts, leading to a consideration of the "meaning and significance of the distinction between superior and inferior courts" (paras.53 - 75). He identified three relevant distinctions to be found in the authorities which, in his view, provided a framework for a proper understanding of the superior/inferior court dichotomy: (1) that between a court which is presumed to act within its powers until the contrary is shown and a court which enjoys no such presumption and whose proceedings must demonstrate on their face that the case in hand falls within its jurisdiction; (2) that between those courts which are amenable to the supervision of the High Court by way of judicial review, and those which are immune from it; and (3) that between courts of limited jurisdiction and courts of unlimited jurisdiction. Having discussed each in detail by reference to the authorities, he came to this conclusion at paras.72 and 73:
[37] In the course of discussing the third distinction, namely that
between courts of limited and unlimited jurisdiction, Laws LJ referred to the
decision of the Divisional Court in R v Cripps, ex parte Muldoon
[1984] 1 QB 68 on the question whether an election court was a
superior court of record (and not amenable to judicial review) or an inferior
court. He quoted from the judgment of the court delivered by Robert Goff LJ,
who, having reviewed the authorities, stated at paras.86 - 87:
"From these cases, it is difficult to extract any precise principle. The most that can be said is that it is necessary to look at all the relevant features of the tribunal in question including its constitution, jurisdiction and powers and its relationship with the High Court in order to decide whether the tribunal should properly be regarded as inferior to the High Court, so that its activities may appropriately be the subject of judicial review by the High Court. As we have already indicated, in considering that question the fact (if it be the case) that the tribunal is presided over by a High Court judge is a relevant factor, though not conclusive against the tribunal being classified as an inferior court; just as relevant are the powers of the tribunal and its relationship with the High Court which can ordinarily be ascertained from the statute under which the tribunal is set up. But, as is demonstrated in particular by [certain cases], there is an underlying policy in the case of tribunals of limited jurisdiction, whether limited by area, subject matter or otherwise, that unless the tribunal in question should properly be regarded in all the circumstances as having a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court is for that reason inappropriate, it is in the public interest that remedies by way of judicial review by the High Court should be available to persons aggrieved; though in some cases there may be special reasons why such remedy should be available only to curb an excess of jurisdiction but not to review and correct an error of law committed within the jurisdiction."
Laws LJ added these comments (at paras.70 and 71):
"70. This citation prompts a number of points. First, the second sentence might suggest that Goff LJ implicitly accepts what is Mr Eadie's argument in this case, namely that the label, superior/inferior, drives the conclusion as to whether or not the court in question is reviewable ('whether the tribunal should properly be regarded as inferior to the High Court, so that its activities may appropriately be the subject of judicial review'). But I think that would to misread the judgment. It is clear to my mind that the approach being commended is to examine all the characteristics of the court in question in order, not to dignify it with a name or status, but to ascertain whether in substance it should be subject to the judicial review jurisdiction of the High Court. In the fulfilment of that task various factors may be relevant; the nearest one gets to a general principle is the "underlying policy" to which Goff LJ refers, namely that tribunals (and the context shows that courts are included) of limited jurisdiction should generally be subject to judicial review.
71. There is another point to be taken from Ex p. Muldoon. In a passage I need not set out Goff LJ observed that the Court-Martial Appeal Court and the Restrictive Practices Court were simple examples of courts which were not inferior for the purposes of judicial review. If that is right, as with respect I am clear that it is ..., it shows that the High Court is not uniquely beyond judicial review. However since the Judicature Act 1873 the High Court has included the great majority of the earlier superior courts of record, and is the only court whose jurisdiction is truly unlimited. Other courts not subject to review (leaving aside, of course, the Court of Appeal and the Supreme Court) are exceptional cases whose immunity is justified by reason of their 'having a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court is for that reason inappropriate'. While the two courts referred to by Goff LJ were designated superior courts of record by the relevant statutes, in substance it is their possession of this status, their proximity in kind to the High Court, that confers their immunity. In deciding ... whether by force of the common law the judicial review jurisdiction will or will not run to ... UT, I shall have to consider whether the same applies to those bodies."
[38] Laws LJ then went on to consider the common law position -
whether and to what extent as a matter of common law the supervisory
jurisdiction could be exercised over the actings and decisions of the Upper
Tribunals. Since the Upper Tribunal possessed a limited jurisdiction, in the
sense that it owned only the jurisdiction given by statute, the question to be
decided in respect of it was "the Muldoon question" (see para.77):
"should either institution [viz. SIAC and UT] properly be regarded in all the circumstances as having a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court is for that reason inappropriate? Put another way, ... does either body constitute in effect an alter ego of the High Court? ..."
He considered that there had to be "an impartial authoritative judicial source of statutory interpretation, independent both of the legislature and of the persons affected by the application in practice of the relevant texts." That source, he said, was "either the High Court or its alter ego."
[39] Laws LJ then considered the two different
meanings of "excess of jurisdiction" in administrative law: (1) where a court
or tribunal "travels into territory where it has no business"; and (2) where,
acting within the field ascribed to it, the court or tribunal gets the law
wrong. The first (which
parties before me referred to as "pre-Anisminic" excess of jurisdiction)
gave rise to few problems. But the second was more problematic. As he
explained at paras.79 - 80:
"79. ... A court acts in excess of jurisdiction by getting the law wrong if it is not the final judge (subject to any statutory appeal) of the law it has to apply. If it is not, it exceeds its jurisdiction if it makes a legal error, and in that case the High Court as successor to the King's Bench may issue a certiorari (nowadays, a quashing order) to correct the error. By contrast if the court in question is the last judge of the applicable law (subject as I have said to any right of appeal) it will not exceed its jurisdiction by perpetrating a legal error, and the High Court will have no corrective or supervisory role.
80. As regards administrative or
executive decision-makers, as opposed to courts, Anisminic v Foreign
Compensation Commission
[1969] 2 AC 147 decides they have no
jurisdiction to get the law wrong; every material error of law is an excess of
jurisdiction and exposes the decision-maker to judicial review .... As regards
courts the position is less straightforward, as Lord Diplock's speech in Racal
[In re Racal Communications [1981] AC 374] shows. At 383 - 384 he
said:
'But there is no similar presumption [sc. to that which applies to administrative decision-makers] that where a decision-making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic but upon any application for judicial review of a decision of an inferior court in a matter which involves, as so many do, interrelated questions of law, fact and degree the superior court conducting the review should not be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide.'"
[41] Having dealt with the position of SIAC in paras.82-86, holding
that it was susceptible of judicial review in the wider sense, Laws LJ turned
to consider the position of the Upper Tribunal. The general considerations
influencing his decision are set out at paras.87 - 89:
88. In addition, as I have shown ... UT possesses a jurisdiction itself to grant judicial review, applying the same principles and granting the same relief as the High Court. This, I think, is of some importance in considering 'the powers of the tribunal and its relationship with the High Court' (Muldoon, per Goff LJ). The intention of TCEA ss.15 - 21 is, I apprehend, to bring about a state of affairs in which the function of judicial review is shared (in England and Wales, and Northern Ireland; ss.20 and 21 deal with Scotland) between UT and the High Court. It is notable that UT's power to grant judicial review is not delineated by a positive list of topics or subjects stated to fall within its scope. It is expressed entirely generally, subject only to certain limitations (TCEA s.15). A striking feature of the balance of judicial review work struck by the statute between UT and the High Court is that ... judicial review applications commenced in the High Court must be transferred to UT if four conditions are met .... If the third condition ... is not met but the other three are, the High Court enjoys a discretion whether to transfer the case ... .
89. I have also described ... the statutory arrangements contained in TCEA Schedule 1 which have been set in place to establish the membership of UT. In England and Wales full-time professional judges of all ranks (save justices of the Supreme Court) are ex officio judges both of FTT and UT. However the Senior President is to be a judge of the Court of Appeal here or in Northern Ireland or a judge of the Inner House of the Court of Session, assuming agreement as to the appointee's identity among the statutory consultees ... The ordinary expectation, as I read the statute, is that the Senior President will be a judge of Court of Appeal rank (as is the present incumbent, Carnwath LJ), and that is of some significance in considering the tribunal's authority. ..."
[42] The main argument for Mr Cart was a simple one, namely that the decision of the Upper Tribunal sought to be impugned by the
claimant "was of exactly the same kind as many decisions of Social Security
Commissioners taken over the years which have been subject to the judicial
review jurisdiction with nothing but benign results for the accurate
administration of the social security system": see para.89.
That was recognised as an accurate description of what had gone before. The decision sought to be reviewed by Mr Cart was of a type accepted,
for good reason, as fit for judicial review when taken by a Commissioner. But
Laws LJ considered that the advent of the Upper Tribunal and the First-tier
Tribunal "now commends a different outcome". He referred in
para.95 to the need for proportionality. Given the many layers of reviews and
applications for leave to appeal provided for by the Act, if judicial review
was available in the wider sense contended for by Mr Cart, a point first raised
in the First-tier Tribunal might be liable to something like eight tiers of
judicial consideration before finally being resolved. But his principal reason
for rejecting the argument that the decision in question was susceptible of
judicial review in the wider sense was, as I understand it, that set out in
para.94 (part of which I have already quoted in para.[32] above):
"94. In my judgment UT is, for relevant purposes, an alter ego of the High Court. It therefore satisfies the material principle of the rule of law: it constitutes an authoritative, impartial and independent judicial source for the interpretation and application of the relevant statutory texts. It is not amenable to judicial review for excess of jurisdiction in the second sense: the case where, albeit acting within the field ascribed to it, the court perpetrates a legal mistake. It is a court possessing the final power to interpret for itself the law it must apply. Mr Drabble's elegant argument has not persuaded me to the contrary. UT's role at the apex of a new and comprehensive judicial structure ought to be respected and given effect. Its judicial review function is highly material to that role's status and authority. And it must, I think, be obvious that judicial review decisions of UT could not themselves be the subject of judicial review by the High Court; but I cannot see that UT might be reviewable when acting under TCEA ss.11 - 12 but not when acting under ss.15 - 21."
[43] It was argued, however, that even if judicial
review could not generally be had against the Upper Tribunal, it might
nonetheless be available in rare and exceptional cases. This submission was
made under reference to the decision of the Court of Appeal in R (Sivasubramaniam)
v Wandsworth County Court [2003] 1 WLR 475, a case dealing with judicial
review of the county court to which I shall refer later. Laws
LJ recognised that it might be said that a consequence of his conclusion that
the Upper Tribunal, unlike the county court, was an alter ego of the
High Court, was that the High Court did not have the legal power to issue
judicial review to the Upper Tribunal, whether in exceptional cases or in any
other kind of case. He answered this in the following way (at paras.98 -
99):
"98. The nature of the judicial review jurisdiction owned by the High Court has an elusive quality, because its limits are (generally) set by itself. In consequence, the distinction between a legal place where the jurisdiction cannot go, and a legal place where as a matter of discretion the High Court will not send it, is permeable: even unprincipled. Ultimately the court is simply concerned to give the jurisdiction the reach, or edge, which the rule of law requires. Here, for reasons I have given, the rule of law does not require that UT be reviewable for excess of jurisdiction in the second sense of the term as I have described it (where, acting within its proper field, the court perpetrates a legal error): quite the contrary. It might therefore be said that the High Court has no jurisdiction to issue judicial review to UT on such grounds. In truth, however, it means only that there is no case in which it would be right to exercise the judicial review jurisdiction on such grounds. Accordingly my principal conclusion in UT's favour offers no logical bar to an acceptance of [counsel's] fall-back position based on Sivasubramaniam.
99. In the grossly improbable event
that UT were to embark upon a case that was frankly beyond the four corners of
its statutory remit - the first sense of excess of jurisdiction - I see no
reason why the High Court should not correct it. As for 'denial of the
applicant's right to a fair hearing' (Sivasubramaniam paragraph 56) I
would be very much more cautious. Complaints of unfairness in the course of a
hearing are legion, and very various. The rule of law would be frustrated, not
advanced, if litigants were allowed to test in the High Court the merits of any
and every such complaint. I would, with diffidence, repeat what I said in R
(Strickson) v Preston
County Court
[2007] EWCA Civ 1132 at paragraph 32:
'How should such a defect be described in principle? I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both), and a case where, as I would venture to put it, the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case. It will or may include the case of pre-Anisminic jurisdictional error... It would include substantial denial of the right to a fair hearing...'
I hope it is clear from the context that the reference there to a "substantial denial of the right to a fair hearing" was intended only to denote the case where there has been a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal."
Mr Cart's complaints did not fall within the ambit of judicial review thus explained. Accordingly, his application was dismissed.
[44] I was told that the decision in Cart, so far as concerns
the reviewability of decisions of the Upper Tribunal, is under appeal.
However, there is no appeal against the decision that the designation of the
Upper Tribunal as a "superior court of record" does not ipso facto make its
decisions immune from judicial review
Submissions for the respondents
(i) Overview
[45] Mr Collins, who appeared for the
respondent, helpfully presented his submissions under reference to a Note of
Argument, revised to deal with points made in the petitioner's Note of
Submissions lodged before the hearing. He made his reply under reference to a
Supplementary Note of Argument put in later. He made it clear that the
respondent did not seek to argue the point, rejected in Cart, that the
Upper Tribunal was, by virtue of its statutory designation as a "superior court
of record" ipso facto immune from judicial review. However, the
respondent did argue, as his primary submission, that the Upper Tribunal was a body
which was so closely equivalent in status to the Court of Session that it was
not amenable to judicial review except in exceptional circumstances. That was
the argument accepted in respect of England and Wales in Cart (applying the
reasoning in Muldoon). The respondent's secondary submission was that
the decision of the Upper Tribunal in the present case, refusing the petitioner
leave to appeal to it from the First-tier Tribunal, was to be treated as if it
were a decision of a "court" (albeit not a "supreme court") and not merely of a
tribunal, applying the distinction drawn in Racal, and as such could
only be the subject of judicial review in exceptional circumstances.
[46] Mr Collins emphasised that in
both his primary and his secondary submissions judicial review was available as
a remedy in "exceptional circumstances". He explained that this expression was
used to allow judicial review in cases where there had been an excess of
jurisdiction, in the pre-Anisminic sense, or a collapse of fair procedure.
I take this from para.4 of his Supplementary Note of Argument. It is not clear
to me that formulation this is as narrow as that proposed by Laws LJ at para.99
of Cart, where he left open the possibility that, in principle, judicial
review might be available were the Upper Tribunal to embark on a case that was
"frankly beyond the four corners of its statutory remit" or where there had
been "a wholly exceptional collapse of fair procedure", since in para.100 this
residual judicial review jurisdiction was described as only "theoretical". I
proceed, however, on the basis that the respondent's position is as set out by
Mr Collins.
(ii) the respondent's primary submission
[47] In developing his primary
submission, Mr Collins advanced a number of arguments reflecting those which
emerged from the judgment in Cart. I shall summarise here the main
points; to set them all out in full would be needlessly repetitious. He accepted,
under reference to the speeches of Lord Kinnear and Lord Shaw of Dunfermline in
Moss' Empires v Assessor for Glasgow 1917 SC(HL) 1 at 6 and 11
respectively, that it was within the jurisdiction of the Court of Session to
keep inferior judicial and administrative bodies right, to compel them to keep
within the limits of their statutory powers, and to compel them to fulfil those
conditions which are a pre-condition of the exercise of those powers. However,
he submitted that that the supervisory jurisdiction of the Court of Session did
not generally extend to review the decisions of other supreme courts or
"supreme tribunals" (per Lord Kinnear in Moss' Empires at p.7). Certain
factors operated to restrain the exercise of the jurisdiction in such cases. Those
factors included the nature of the body whose decisions were sought to be
brought under review: see Clyde & Edwards, Judicial Review (2000),
para.9-02 ff. Thus the Court of Session would generally refrain from
interfering with decisions of the following: the High Court of Justiciary
(Clyde & Edwards para.8-40, Cordiner, Petitioner 1973 JC 16 per Lord
Justice General Emslie at 18); the Valuation Appeal Court (Stirling v
Holm (1873) 11 M 480, 484 and, per Lord President Inglis at 487); the Tiend
Court (Earl of Camperdown v Presbytery of Auchterader (1902) 5 F
61 per Lord Kinnear at 69); and the Courts of the Church of Scotland in
ecclesiastical matters (Wight v Presbytery of Dunkeld (1879) 8 M
921, per Lord Justice Clerk Moncrieff at 925 and Lord Neaves at 927. He
also sought to bring within this list the (so called) Registration Appeal
Court, citing Smith v Scott 2007 SC 345 at paras.[30]-[36]; but
that decision is of questionable value here, being a decision of the
Registration Appeal Court on the question whether it had power to make a
declaration of incompatibility and not a decision of the Court of Session as to
its power to review decisions of the Registration Appeal Court. Although the
expression "would generally refrain" is taken from the respondent's Note of
Argument, as I read those cases they are cases in which, because of the nature
of the other body, it has been held that there is no power to intervene. It
was in this context of the court having no power to interfere with decisions of
particular courts that the question arose as to whether the Upper Tribunal
should be regarded as a "supreme tribunal"; and, if so, what were the
circumstances in which the Court of Session might be prepared to exercise its
supervisory jurisdiction over it.
[48] Mr Collins submitted that there
was little guidance in the cases as to the criteria to be considered in
determining whether a body was a "supreme court" or "supreme tribunal" and
therefore not, in general, amenable to judicial review. In most of the
instances cited, the membership of the court comprised persons who were also judges
of the Court of Session, but that was not a feature of the established church
cases and could not be decisive. Nor, since the Land Valuation Appeal Court was not generally amenable to judicial
review, was it necessarily determinative that the court or tribunal was or was
not one of limited jurisdiction. The suggestion by Lord Deas in Stirling
v Holm at p.488, that the existence of a power to make and regulate
its own procedure was an indication that the court was a supreme court, did not
supply an answer of any general application. In the circumstances, he
submitted, the court should be guided by the views expressed in Muldoon
at pp.86-87 (see para.[37] above). The question for the court here was
whether, having regard to all the relevant features of the Upper Tribunal,
including its constitution and powers and its relationship with the Court of
Session, it should properly be regarded as having a status so closely
equivalent to the Court of Session that the exercise of the supervisory
jurisdiction would generally be inappropriate. This applied by analogy the
test suggested in Muldoon as explained in Cart at paras.70 and
71: "... the approach being commended is to examine all the characteristics of
the court in question in order, not to dignify it with a name or status, but to
ascertain whether in substance it should be subject to the judicial review
jurisdiction of the High Court."
[49] In answering this question, it
was important to bear in mind the context in which it was asked. That context
was the requirement of the rule of law, the maintenance of which was the
essential purpose of the exercise of the supervisory jurisdiction. A tribunal
should not be subject to the exercise of the supervisory jurisdiction if that
was not necessary for the maintenance of the rule of law. Where, as here, the
tribunal itself constituted "an authoritative, impartial and independent
judicial source for the interpretation and application of the relevant
statutory texts", to adopt the phrase used in Cart at para.94 (and see
also Cart paras.36-39), the rule of law did not require that its final
decisions be subject to judicial review.
[50] For the reasons set out in Cart,
the Upper Tribunal should be so regarded. Whilst the reasoning in Cart
was persuasive, it was also desirable as an end in itself that there should be
a consistency in approach between England and Scotland in this area. The Act was
designed, save only in relation to devolved matters, to create a unified
structure of First-tier and Upper Tribunals on a United Kingdom wide basis. It would be undesirable that
decisions of the Upper Tribunal should be subject to judicial review in one
jurisdiction and not in the other, or that the grounds for the exercise of a
judicial review jurisdiction in respect of the Upper Tribunal should differ
according to whether the application fell to be made in England or in Scotland. There was in general no difference in
the two jurisdictions in the substantive law governing judicial review: see Brown
v Hamilton District Council 1983 SC (HL) 1, 42. Further, as the
decision in Tehrani v SSHD 2007 SC (HL) 1 showed, the Court of
Session might in exceptional cases have jurisdiction over the Upper Tribunal sitting
in England and Wales (see per Lord
Nicholls at paras.21, 24 and 25, per Lord Scott at paras.74-75 and per Lord
Rodger at paras.103 and 107). There was no reason why the court should be
unwilling to adopt the same approach to the Act as was adopted in England: c.f. Tonner v
Reiach & Hall 2008 SC 1 at paras.43 - 44.
[51] Turning to the judicial review
jurisdiction of the Upper Tribunal, Mr Collins submitted that in both
jurisdictions Parliament had provided that there was to be a sharing of the exercise of judicial review
powers as regards non-devolved matters between the relevant court and the Upper
Tribunal. In both
jurisdictions it was ultimately within the control of the relevant court as to
just how much sharing was to be done. In Scotland, there was a mandatory transfer to the
Upper Tribunal only in cases specified by Act of Sederunt made by the Lord
President. In other cases, any transfer was dependent upon the exercise of
discretion by the Lord Ordinary. Once the court had decided to transfer a case
to the Upper Tribunal, it was then for all practical purposes the alter ego of
the court in relation to that application.
[52] It did not follow from a finding
that the Upper Tribunal was a "supreme" Tribunal that its decisions could never
be subject to judicial review by the Court of Session. In this respect the
position was similar to that in Cart. The question was rather one of
the extent to which the supervisory jurisdiction of the Court of Session should
be exercised; or, to put it another way, what degree of restraint should the
Court of Session exercise in its judicial review function. It was a question
of degree. There were already a number of bodies which were not recognised as "supreme" but in respect of which the Court of
Session had always exercised restraint. Reference was made to Clyde & Edwards at paras.9.07
and 9.08, M'Millan v The Free Church (1859) 22 D 290, 314 and M'Donald
v Burns 1940 SC 376, 383. The approach in those cases was similar to that left open by Laws LJ in Cart. Even
in respect of decisions of the Social Security Commissioners refusing leave to
appeal to them from social security appeal tribunals, the court would exercise
restraint: see per Hale LJ in Cooke v Secretary of State for Social
Security [2002] 3 All ER 279 at 285, and see also Mooney v
Secretary of State for Work and Pensions 2004 SLT 1141 and Donnelly v Advocate
General for Scotland 2007 SCLR 746 at para.[13]. The approach decided upon in Cart
went further than this, but the legislative changes to the Tribunal system
justified this different outcome. Other than in quite exceptional cases, decisions of the
type under challenge in this application are ones in respect of which it was
neither appropriate or necessary to allow judicial review in order to satisfy
the requirements of the rule of law. Mr Collins reviewed the authorities from Anisminic
and Racal through to Sivasubramaniam, Gregory v Turner
[2003] 1 WLR 1149 at paras.40 - 46, R (Sinclair Gardens Investments Ltd) v
Lands Tribunal [2006] 3 All ER 650 at para.40, and R (Strickson) v
Preston County Court [2007] EWCA Civ 1132 at para.32.
[53] The distinction between an intra-vires
area of law which could not be corrected and one which was ultra vires
continues to be recognised in Scotland in various contexts notwithstanding the arguments based on
Anisminic. Reference was made to Watt v Lord Advocate 1979
SC 120, O'Neill v. Scottish Joint Negotiating Committee for Teaching
Staff 1987 SC 90, Rae v Criminal Injuries Compensation Authority
1997 SLT 291, Milton v Argyll
and Clyde Health Board 1997 SLT 565, 567H-568G, Codona v Showmen's Guild of Great
Britain 2002 SLT 299 at paras.18 and 19, Diamond
v PJW Enterprises 2004 SC 430, Cameron v Gibson 2006
SC 284, and Hyaltech Ltd., Petitioners 2009 SLT 92. The approach adopted in Cart simply
built on this distinction. A tribunal acting within the scope of its powers
was entitled to "get the law wrong" without being exposed to judicial review
every time it did so.
(iii) the respondent's secondary submission
[54] Unlike
his primary submission, the respondent's secondary submission was case sensitive.
In other words, it focused on the particular type of decision sought to be
reviewed, in this case a refusal of permission to appeal to the Upper Tribunal
in relation to a claim for social security benefits. He submitted that such a
decision should not be judicially reviewable except on pre-Anisminic
grounds. The court should apply Sivasubramaniam and Sinclair
Investments. In Sinclair Investments the Court of Appeal held that
a challenge to the decision of the Lands Tribunal to refuse permission to
appeal to it was confined to pre‑Anisminic grounds. In Racal,
Lord Diplock explained the effect of the decision in Anisminic, and
drew the distinction between administrative tribunals and authorities on the
one hand and courts on the other. In the case of administrative tribunals and
authorities, he said, there was a presumption that the intention of Parliament
was that their decisions would be subject to judicial review on Anisminic
grounds. There was no similar presumption in relation to the decisions of
courts. However, Lord Diplock was only concerned to identify the
presumption, the starting point. Further, it would be wrong to regard the two
categories, namely administrative tribunals and authorities on the one hand and
courts on the other, as closed boxes. The relevant question was always: what
was Parliament's intention in relation to the decision in question in the light
of the presumption or its absence? Accordingly, even if the Court of Appeal in
Sinclair Investments had considered the Lands Tribunal to be an
administrative tribunal or authority to which the presumption applied, it was
legitimate for it to hold that the parliamentary intention in relation to the
particular statutory decision under attack was that review would lie only on pre-Anisminic
grounds. Nor was it right to apply labels, viz. "court" or "administrative
tribunal", without looking at the substance of the matter. Just because a
particular body, such as the Lands Tribunal or the Upper Tribunal, was called
in the relevant statute a "tribunal", that did not mean that it should not be
regarded as "court" for the purpose of the distinction drawn in Racal.
The nature and constitution of the body in question had to be considered.
Reference was made to the various characteristics of the Upper Tribunal already
mentioned in connection with the primary submission. Further, it was relevant
to note that the characteristics of administrative tribunals or authorities had
changed markedly since the time that Anisminic and Racal were
decided: see Wade & Forsyth, Administrative Law, 10th Ed,
chapter 23. Many tribunals in those days were single tier bodies, sometimes
without any legally qualified members and sometimes without any right of onward
appeal. For example, the immigration tribunals which existed at the time of Anisminic
and Racal bore little resemblance to the comprehensive multi-tiered
Immigration and Asylum Appeal System which exists today. Similarly, in the
case of social security appeals, there was no onward right of appeal until the
creation of the Social Security Commissioners in 1980 and, at the same time, an
onward right of appeal to the Court of Appeal in England and the Court of
Session in Scotland: Wikeley, Ogus & Barendt, The Law of Social Security, 5th
Ed, pages 178, 205. The Upper Tribunal was more in the nature of a
"court" than an administrative tribunal of the type contemplated in Racal.
[55] Finally Mr Collins emphasised, in answer to submissions made on
behalf of the petitioner, that the approach of the Lord President (Emslie) in Watt
v. Lord Advocate 1979 SC 120 had, with few exceptions at Outer House level,
generally been taken as correctly stating the scope of the supervisory
jurisdiction of the Court of Session, notwithstanding the decision in Anisminic.
In this connection he referred again to the cases set out in para.[53] above.
Submissions for the petitioners
[56] Mr Mitchell Q.C, who appeared for the petitioner, accepted that
if the respondent's primary submission was correct, that was the end of the
case. The petitioner had not pled herself into a case of that sort. However,
he submitted that if I was not with the respondent on his primary submission,
then the case should be put out By Order for further procedure. That
submission did not, I think, take account of the fact that the respondent's
secondary submission in the end came to a similar result as his first. I shall
return to this point at the end of my Opinion. Mr Mitchell also lodged written
submissions, namely a Note of Submissions on Competency and a Supplementary
Note of Argument, though in his case he put these in as background and
developed his oral submissions independently of them.
[57] In his Note of Submissions on Competency, Mr Mitchell gave
prominence to what he called the "Constitutional Position". It was "the
province of the Court of Session to redress all wrongs for which a peculiar
remedy is not otherwise provided": Erskine, Institutes, 1. iii. 23. It
was "one of the attributes of a Supreme Court which belongs to the Court of
Session ... that the Supreme Court has (precisely because it is a Supreme Court)
power by way of reduction over even its own decrees": see Jarvie's Trustees
v Bannatyne 1927 SC 34, 38. Against this background, he submitted, the
respondent's primary submission could be seen to be both fundamental and
far-reaching. The respondent's proposition amounted to this, that a necessary
attribute of the Court of Session as the Supreme Court of Scotland may be
removed by a "statutory by-wind" in such a manner that there comes into
existence a tribunal which may make any error, or act beyond its jurisdiction
to any extent, in a manner entirely free of the control of either the Court of
Session or any Court whatsoever, although the overwhelming majority of its
members are not even legally qualified in this jurisdiction. That proposition
was unconstitutional. Although this argument for the petitioner was originally
presented in the Note of Submissions on Competency in opposition to the
argument which it was anticipated that the Respondent would run, based on the
provision in s.3(5) of the Act that "the Upper Tribunal is to be a superior
court of record", I understood it to be pressed with equal vigour in opposition
to the respondent's primary submission that the Upper Tribunal enjoyed a status
so closely equivalent to that of the Court of Session that it was not amenable
to judicial review save in exceptional circumstances. Mr Mitchell pointed
out that when the Act was presented to the Westminster Parliament, a "Sewel motion"
was made to the Scottish Parliament in respect of Part 1, and that motion was
passed without substantial debate. Neither the Westminster Parliament nor the
Scottish Parliament was informed that the practical effect of what it was being
asked to do was to remove the supervisory jurisdiction of the Court of
Session.
[58] As was noted in Cart, the term "superior court of
record" was not a term that had any recognised meaning in the law of Scotland. It was trite law, he said, that the supervisory jurisdiction
of the Court of Session rested on entirely different principles from that of
the English High Court. Although the substantive law governing the exercise of
judicial review functions was the same in Scotland as in England, there were significant differences over
the extent of that jurisdiction, who might be made subject to it, and so on.
It was explained in West v Secretary of State for Scotland 1992
SC 38 that the Court of Session had power in the exercise of its supervisory
jurisdiction to regulate the process by which decisions were taken by "any
person or body to whom a jurisdiction, power or authority has been delegated or
entrusted by statute, agreement or any other instrument". And in Tehrani
v Home Secretary 2007 SC (HL) 1 at para [48], Lord Hope, after
referring with approval to West, explained that the supervisory
jurisdiction had its origins in the principle that "where an excess or abuse of
the power or jurisdiction conferred in a decision maker is alleged, the Court
of Session in the exercise of its function as a Supreme Court has power to
correct it". For that reason, the court should not be constrained by any
consideration given in England as to the extent of the jurisdiction of
the English High Court over the Upper Tribunal in English law; nor, a
fortiori, should it be constrained by the decision in Cart. The
correctness or otherwise of the arguments which found favour in Cart
were ultimately a matter for the English Courts to decide. They had nothing to
do with the jurisdiction of the Court of Session and nothing to do with the
determination in this case.
[59] Mr Mitchell argued that, as the Upper Tribunal was a
decision-maker on which a jurisdiction had been conferred by statute, it was by
definition a tribunal of limited jurisdiction. It could not do a number of
things which the Court of Session could do. It could not exercise the nobile
officium. It could not make a declaration of incompatibility under the
Human Rights Act. It was not to be regarded as an alter ego of the Court
of Session it was inferior to it. An appeal lay from it to the Court of
Session. To that extent its status was inferior to that of the Lands Valuation Appeal Court, the Registration Appeal Court and the Employment Appeal Tribunal from which no appeal
lay to the Court of Session but whose actions were subject to review under the
supervisory jurisdiction of the Court of Session. Although appeals from the
Upper Tribunal were possible, with leave, on points of law in certain
circumstances, Scots law provided no remedy in respect of any excess or abuse
of power by the Upper Tribunal other than by the exercise of its supervisory
jurisdiction.
[60] In Cart, the court was influenced in its decision by the
fact that the Upper Tribunal had an original judicial review jurisdiction under
s.15 of the Act. In Scotland, there was no such original jurisdiction.
No application for judicial review in cases arising under the law of Scotland could be presented directly to the Upper Tribunal.
Applications for judicial review in Scotland may only be
made to the Court of Session. The court then has a discretionary power to
transfer applications to the Upper Tribunal. That structure was fundamentally
different from that in England. It might be that because of its judicial
review function the Upper Tribunal could be seen as having a status equivalent
to that of the English High Court, but there was no similar basis for regarding
it as having a status equivalent to that of the Court of Session.
[61] There were other substantial differences between the character
of the Upper Tribunal as a court or tribunal acting under English law and its
character as such acting under Scots law. He submitted that "in substance" it
was a court in "Westminster Hall" within the meaning of Article XIX of the Union with England Act 1707. In other words, it was
effectively an English tribunal which might be an alter ego of the
English High Court but could not be an alter ego of the Court of
Session. Its base was in London (though it did sit elsewhere), its
membership was predominately composed of English lawyers (unqualified in Scots
law), its procedural rules were English, and it was led by an English Judge.
In addition, s.18 of the Act provided for judicial review applications in the
Upper Tribunal under English law to be heard by English High Court judges or
judges of equivalent status (including Court of Session judges); but there was
no similar requirement that judicial review applications under Scots law be
heard by judges of equivalent rank. And whereas legal aid was available for
judicial review cases before the Upper Tribunal under English law, there has
been no provision as yet for legal aid to be made available in judicial review
cases under Scots law. None of these points were in themselves fundamental,
provided that the Court of Session retained a supervisory jurisdiction over the
actings and decisions of the Upper Tribunal; but they assumed greater
significance if decisions of the Upper Tribunal were to be immune from review.
[62] Mr Mitchell's Supplementary Note of Argument was prepared after
it became apparent that the respondent no longer relied upon s.3(5) of the Act
and the description of the Upper Tribunal as a "superior court or record". In
it he made the submission that, with this stripped out of the argument, there
was in fact nothing to distinguish the Upper Tribunal from any other Tribunal
exercising a limited statutory jurisdiction. As he put it, if the Upper
Tribunal was a supreme court or tribunal, so were the Social Security
Commissioners before it.
[63] Referring to the respondent's argument that there were a number
of courts which were not generally subject to judicial review in the Court of
Session (except possibly exceptionally), he suggested that one class was that
of courts which exercised a criminal or spiritual rather than a civil
jurisdiction. The reason why the Court of Session had no jurisdiction over
errors of law made by those courts was that, not being civil courts, they were
not within the jurisdiction of the court (as the Supreme Civil Court of
Scotland) anymore than a foreign court would be. He referred to Westergaard
v Westergaard 1914 SC 977, Tehrani
v Home Secretary and Clarke v Fennoscandia 2008 SC (HL) 122. The second
class was that of courts which were truly equivalent to the Court of Session or
which were, in effect, that court under another name, such as the Valuation Appeal Court. It was plain that the Court of Session
had no judicial review jurisdiction over errors of law committed by itself.
There was no Scottish authority which supported the enquiry, suggested by the
respondent on the strength of Muldoon and Cart, into whether the
Upper Tribunal had a status equivalent to that of the Court of Session, or was
its alter ego.
[64] However, even if that approach were germane, the respondent was
incorrect in ascribing that status to the Upper Tribunal. In particular,
reliance upon the fact that the Upper Tribunal was given powers in respect of
evidence and to punish contempt of court did not assist. If the respondent was
correct in his characterisation of the Upper Tribunal as having a status
equivalent to that of the High Court or Court of Session, those powers would
not require to be given expressly; they would be implied. But the fact that
the Upper Tribunal had such powers did not help - those powers were enjoyed
also by the Sheriff Court, and it could not be suggested that the Sheriff Court was a "supreme court" and thus immune from judicial
review.
[65] The respondent's secondary argument, that, even if the Upper
Tribunal did not have a status equivalent to that of the Court of Session,
nonetheless it was a court or tribunal whose decisions should only be subject
to judicial review in exceptional circumstances, was not well-founded. The
circumstances in which judicial review will lie for error of law were well
established. Mr Mitchell referred to Anisminic, Racal, O'Reilly
v Mackman [1983] 2 AC 237, R v Lord
President of the Privy Council (ex parte Page) [1993] AC 682 and Bonnington
v British Transport Police [1999] 2 AC 143 at 154. Anisminic laid down a test of general application. The
effect of Anisminic was that judicial review was not only available in
cases where the tribunal had had not jurisdiction to enter on the enquiry; even
in cases where it was so entitled, judicial review was available to put right
any errors of law underpinning its decisions: see e.g. per Lord Reid at
p.171B-E. Lord Diplock summarised the effect of Anisminic in his speech
in Racal at p.383C:
"The breakthrough made by Anisminic was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished."
Errors of law which do not go to jurisdiction are, in the cases which have followed Anisminic, sometimes referred to as "intra vires errors of law". In Racal, the House of Lords confirmed the ability of the court on an application for judicial review to correct errors of law made by an administrative tribunal or authority in reaching its decision. The presumption was that Parliament did not intend tribunals or authorities which were not courts of law to have the final power to decide questions of law: per Lord Diplock at p.383B. But there was no similar presumption where the decision-making powers were conferred on a court of law. Accordingly, the Anisminic approach (whereby judicial review could be used to correct intra vires errors of law) applied to tribunals and other administrative bodies, but inferior courts were judicially reviewable only on a pre-Anisminic basis. The Upper Tribunal was a tribunal to which the Anisminic approach applied. In Sinclair Investments, the Court of Appeal had elided the distinction (drawn in Racal) between administrative tribunals and authorities on the one hand and inferior courts on the other, and held that a decision of the Lands Tribunal to refuse leave to appeal to itself from a determination of a Leasehold Valuation Tribunal was reviewable only on a pre-Anisminic basis (procedural irregularity or excess of jurisdiction in the narrow sense): see in particular paras.28, 40-41 and 51. That did not support the respondent's primary submission here, since it approached the matter on the basis that the susceptibility of the decision to judicial review was case sensitive, albeit on a generic level. But in so far as it suggested that tribunal decisions should not be subject to full Anisminic style judicial review, it should not be followed, at least in Scotland.
[66] The substantive law relating to judicial review was the same in
Scotland as in England: see Brown v Hamilton DC 1983 SC (HL) 1,
42, West at p.405, Clyde and Edwards, Judicial Review, paras 2.36,
14.02 and 22.23. In particular, the approach in Anisminic had been
recognised from early on to be part of Scots law, a point which Lord Fraser (in
the passage to which I have referred in Brown v
Hamilton) took to have been decided in Watt v
Lord Advocate 1979 SC 120. Matters had become obscured by the remarks made
obiter by the Lord President (Emslie) in Watt at p.131 that "the
Court of Session has never had power to correct an intra vires error of
law made by a statutory tribunal or authority exercising statutory
jurisdiction." Those remarks must have proceeded upon a misunderstanding of Anisminic.
They had never been approved or applied by the Inner House subsequently and did
not represent the law of Scotland. Tribunals, as opposed to courts, were
subject to judicial review in the full Anisminic sense; i.e. the courts
could correct both ultra vires and intra vires errors of law made
by them in reaching their decisions.
Discussion
[67] The question before the court in this case is not whether the
petition for judicial review of the Upper Tribunal's refusal of leave to appeal
to itself from the decision of the First-tier Tribunal is competent, because it
is accepted by the respondent, following Cart, that judicial review may
be available on pre-Anisminic ground. Rather, the question is whether the
petitioner, who has not made averments of excess of jurisdiction in the narrow
sense or of anything which could amount to collapse of fair procedure, but
simply complains of an intra vires error of law, has relevantly invoked
that judicial review jurisdiction. Had it not been for the over-arching
arguments, rehearsed in Cart, about the status of the Upper Tribunal at
the apex of a new and comprehensive judicial structure, that question might
readily have been answered on traditional grounds, involving a consideration of
the House of Lords decisions in Anisminic and Racal and a line of
Scottish authority beginning with Watt v.
Lord Advocate and Brown v
Hamilton DC and moving through a series of well-known cases. However, the
respondent's primary argument raises directly for decision in Scotland the same
arguments which have so far found favour in England, where it has been held, in
effect, that the Upper Tribunal is immune from judicial review save in
exceptional circumstances such as excess of jurisdiction in the narrow sense
and what might be described as collapse of fair procedure. That question is of
fundamental importance, if not to the existence of the supervisory jurisdiction
of the court over tribunals which have hitherto been regarded as "inferior",
then at least to the exercise of that jurisdiction. I should therefore decide
it, rather than seek to decide the case on other grounds. I am grateful to
counsel on both sides for their careful, detailed and wide ranging arguments.
I hope I will be forgiven if I do not deal in this Opinion with every point
raised in those arguments.
[68] The starting point for any decision on the respondent's primary
submission seems to me to involve a recognition that the Act was designed to
create a new unified structure, gathering into one system a wide range of
jurisdictions previously exercised throughout the United Kingdom by an ad hoc collection of statutory
tribunals. That, in itself, breaks down into two discrete but important
points. The first relates to the new unified structure itself. This is a
point to which I shall return, but for present purposes it is important to note
that a unified and coherent two tier structure is in place, providing its own
system of reviews and appeals which ensure that an aggrieved party, by the time
he has exhausted his rights within the system, has had a number of
opportunities to put forward his case. Further, at the higher level within
that system, namely that of the Upper Tribunal, many of the decisions, whether
on the merits or on questions of leave to appeal, will be taken by High Court
or Court of Session Judges. Leaving aside altogether the question of whether
any parliamentary intention can be inferred from the description of the Upper
Tribunal as a "superior court of record", which argument is no longer advanced,
the creation of this new coherent structure of itself raises a question as to
the circumstances in which, and the extent to which, the court should exercise
its judicial review jurisdiction. The question may be posed in terms of
restraint rather than power, but ultimately the question is whether and in what
circumstances the court will be prepared to intervene.
[69] The second point is this. This is a United Kingdom statute, bringing within the new tribunals system a
range of tribunals with United
Kingdom wide jurisdiction.
I have already noted that a number of tribunals dealing with purely Scottish
matters are not brought within the new structure, but that does not matter.
For present purposes I am concerned with tribunals having a jurisdiction in Scotland which are now within the structure created by the
Act. A person aggrieved by a decision of the Upper Tribunal, for example to
refuse leave to appeal to it from the first-tier Tribunal, may seek recourse to
the courts. If it is an English matter, he may seek judicial review in England. If it is a Scottish matter, as here, he may seek
judicial review in Scotland. It would be odd, to say the least (I
would prefer the word "remarkable") if that person's ability to challenge the
decision differed according to whether it was a Scottish or English matter.
The court would need some persuading, so it seems to me, that that could
possibly have been Parliament's intention when passing the Act. There is, therefore,
in my view, a wholly justified pre-disposition to hold that the availability of
judicial review in cases within the new tribunals system in Scotland should be similar to that in England, and vice versa. I say vice versa advisedly, since there
is no more reason for the courts in Scotland to follow a
model formulated in England than for the courts in England to follow one formulated in Scotland.
[70] There is as yet only one decision on the point, and that is the
decision in Cart. That is a decision of the Divisional Court and is under appeal to the Court of Appeal. It would
not be right for me to make any assumptions as to whether the decision and
reasoning in Cart will be upheld in whole or in part. Mr Collins did
not suggest that I should follow Cart as representing the established
position in England and, therefore, by extension, the approach
to be followed in Scotland. He simply commended its reasoning. That
seems to me to be the correct approach. It would be foolish for this court
blindly to follow a decision of the Divisional Court in England, albeit on a matter concerning a United Kingdom statute, when that decision may be overturned on
appeal. Nonetheless, the reasoning in Cart is impressive and entitled
to the fullest respect.
[71] There is another difficulty in the way of this Court following
uncritically the decision in Cart. As I have sought to show, much of
the reasoning in Cart is influenced by peculiarities of English legal
history which finds no echo in Scotland. In particular, the formulation in
Cart of the question whether the Upper Tribunal has a status equivalent to
the High Court appears to be based, in part at least, upon the analysis that
there were certain courts which were not susceptible to prerogative writs
issued by the Court of Kings Bench. That test is then applied to the Upper
Tribunal, the Upper Tribunal is found to have a status equivalent to that of
the High Court and, in consequence, the conclusion is that it is not subject to
judicial review; with the qualification, which Laws LJ accepts to be
"unprincipled", that it may be subject to judicial review in exceptional
circumstances.
[72] Substantial parts of this analysis cannot be translated into
Scottish legal history and jurisprudence. There has not been an equivalent
struggle between different courts. Nor has there been a recognition in Scotland that any court has a status rendering it immune from
the supervisory jurisdiction, in its widest sense, of the Court of Session. On
the contrary, without seeking to attempt a detailed historical analysis of the
supervisory jurisdiction, of which judicial review is but one (though by far
the most important) part, it is clear that no court in Scotland is wholly immune from that supervisory jurisdiction. Even decisions of
the Court of Session itself are in exceptional cases capable of being undone,
not only by appeal to the Inner House, but also by recourse to the supervisory
jurisdiction on grounds of, for example, of want of fair procedure, bias, etc.
[73] Accordingly, it would not be right to approach the question
before the Court by taking the decision in Cart and seeking to apply it mutatis
mutandis to Scotland. Though the subject matter of the
discussion is the same, the approach and the reasoning and ultimately the route
to a solution are likely to be different.
[74] The supervisory jurisdiction of the Court of Session is founded
upon the principle that every wrong should have a remedy. The basis for the
exercise of that jurisdiction is to be found in the nobile officium of
the court. To put it another way, "The supervisory jurisdiction is to be seen
as an expression of the nobile officium": see generally Clyde and Edwards, Judicial Review, at paras 3.01-3.05.
The term "nobile officium" has now come to be used in a narrower sense,
distinct from the exercise of the supervisory jurisdiction by way of judicial
review, though, as Clyde and Edwards suggest at para 3.05, it may not always
matter what label is used provided that the basis of the power to provide a
remedy is established. However, because in its origins the supervisory
jurisdiction of the court was so closely linked to the nobile officium,
there is a risk of confusion as to its scope. There is no doubt that, though
it will be exercised sparingly and, possibly, only in restricted types of case,
the ambit of the nobile officium knows no bounds. Thus it may be
exercised to correct a perceived injustice in the Court of Session itself, and
even in the Inner House: see, for example, Hoekstra v HM Advocate
(Number 2) 2000 JC 387 and Davidson v Scottish Ministers (Number
2) 2005 SC (HL) 7, in both of which there was recourse to the nobile
officium to set aside decisions of the Inner House impugned on grounds of
apparent bias. By contrast, however, it is by now accepted that the
supervisory jurisdiction of the Court of Session, in the more limited sense of
what is now called judicial review, may be exercised only over acts or
decisions of inferior courts or tribunals or administrative bodies. It is
perhaps necessary only to refer to three authorities on this point. The first
is Moss' Empires Limited v Assessor for Glasgow and Others 1917
SC (HL) 1. That case was concerned with the reduction of an entry in the
Valuation Roll on the ground that the assessor had failed to notify the
proprietor of the increased valuation. The main argument turned upon the
question whether the failure to give notice was a want of compliance with the
provisions for "making up" the Roll and therefore exempt from challenge by virtue
of section 30 of the Valuation of Lands (Scotland) Act 1854. The House of
Lords affirmed the majority judgment of the Inner House that the action for
reduction was competent. At p.6 of the report, Lord Kinnear said this about
the jurisdiction of the Court of Session to entertain an action of that kind:
"Wherever any inferior tribunal or any administrative body has exceeded the powers conferred upon it by statute to the prejudice of the subject, the jurisdiction of the Court to set aside such excess of power as incompetent and illegal is not open to dispute".
In discussing the Opinions given in the Inner House at p.7, Lord Kinnear appears to accept that the court's power is to:
"correct the proceedings, not of a Supreme Court but of an inferior Court, or, as I have said, of an administrative body, insofar as they are ultra vires."
Lord Shaw of Dunfermline said this, at p.11:
"I would put my view as to jurisdiction thus:- it is within the jurisdiction of the Court of Session to keep inferior judicatories and administrative bodies right, in the sense of compelling them to keep within the limits of their statutory powers or of compelling them to obey those conditions without the fulfilment of which they have no powers whatsoever. It is within the power of the Court of Session to do that, but it is not within the power or function of the Court of Session itself to do work set by the Legislature to be performed by those administrative bodies or inferior judicatories themselves."
The second authority is Brown v Hamilton District Council 1983 SC (HL) 1, a case perhaps best known for the suggestion by Lord Fraser of Tullybelton which led to the introduction into Scotland of a special procedure for judicial review (see page 49), originally in Rule of Court 260B and now in Rule of Court 58. Rule 58.3 provides that with limited exceptions, all applications to the supervisory jurisdiction of the court are to be made by petition for judicial review under Chapter 58. Of importance for present purposes, however, is the statement by Lord Fraser at p.42 that
"It has long been recognised in Scotland that the Court of Session has jurisdiction to exercise a supervisory control over inferior courts and tribunals in cases where there is no right of appeal from those courts or tribunals, and even in cases where appeal is expressly excluded by statute."
The decision in that case confirmed that the supervisory jurisdiction was exercisable whether the decisions of the inferior courts or tribunals were administrative, judicial or quasi-judicial, and that the jurisdiction was exercisable only by the Court of Session and not by the Sheriff Court. The third authority is West v Secretary of State for Scotland 1992 SC 385, in which (at pp.393-403) the Lord President (Hope), delivering the Opinion of the court, set out at length the history of the development of the supervisory jurisdiction of the Court of Session prior to the introduction of Rule of Court 260B. That case is important in making it clear that judicial review in Scotland is not limited to matters which might be described in England as matters of public law, but is available whenever there is a tripartite relationship in which decisions are taken by a person to whom a jurisdiction, power or authority has been entrusted. However, in the course of a thorough review of the cases, the court made it clear (for example at p.413, at (b)) that the subject matter of judicial review proceedings were acts or decisions of administrative bodies and inferior tribunals. There is no suggestion that the judicial review jurisdiction extends to decisions of the Court of Session; indeed the whole tenor of the Opinion of the Lord President is that judicial review is concerned with controlling excesses of power or other relevant failings of inferior bodies or tribunals (see e.g. at p.402).
[75] It is in this context that I consider that the relevant
question to be asked here is similar to that posed in Cart. Is the
Upper Tribunal to be regarded as an administrative tribunal or authority, or an
inferior court, over which the Court of Session may exercise its supervisory
jurisdiction? Or is it to be characterised as a "Supreme Court" and,
therefore, in general, not subject to that supervisory jurisdiction? To adapt
the language of Cart, does the Upper Tribunal enjoy a status equivalent
to that of the Court of Session? Though the route is different, it seems to me
that the question is ultimately the same on both sides of the border.
[76] On this question, subject to one caveat, I am in broad agreement
with the decision of the Divisional
Court in Cart. In
particular, I would in general adopt the reasoning at paras 87-95. That
reasoning does not depend upon a detailed semantic analysis of the provisions
of the Act: such an approach has no place in construing legislation with
quasi-constitutional effect. The court is attempting to identify the intention
of parliament in enacting the legislation. It is clear that parliament's
intention was to create "a new and comprehensive judicial structure designed to
rationalise and reorganise in a single system the means of adjudication for a
multitude of claims previously determined by a variety of disparate tribunals
with no common appeal mechanism" (Cart, para.87). The Upper Tribunal is
placed at the apex of that structure. It is headed by a judge of Court of
Appeal rank, and its judges include judges of the High Court and Court of
Session. It is given wide, though not unlimited powers. Like Laws LJ (Cart,
para.95), I also regard proportionality as a relevant factor, though (unlike
him, c.f. Cart, para.97) I see it not as a separate point but rather as
one which is intrinsic to an assessment of the new structure as a coherent
whole. The need for proportionality is likely to reflect Parliament's
intention in passing the Act. By the time a case comes to the Upper Tribunal
it will have passed through a number of stages; and if the Upper Tribunal
refuses leave to appeal to itself from a decision of a First-tier tribunal,
there will have been many opportunities for the parties to present their
arguments (see Cart, para.95). In the ordinary case a yet further
opportunity to challenge by judicial review a non-appealable decision of the
Upper Tribunal to refuse leave to appeal to it might be seen as disproportionate.
These factors all support, in my opinion, the proposition that the Upper
Tribunal should be regarded as "an appeal court of general jurisdiction in
relation to matters which are consigned to adjudication at first instance by
statutory tribunals" (Cart para.87). Subject to the right of appeal,
with leave, to the Court of Appeal or the Inner House, decisions of the Upper
Tribunal should generally be regarded as final and not subject to review. In
addition, as Laws LJ points out (Cart, paras.88 and 94) it has a
judicial review jurisdiction, partly original and partly to be exercised only
when cases are transferred to it, which enhances its status, though for my part
I would not place this at the forefront of my reasoning - clearly judicial
review decisions of the Upper Tribunal could not be made the subject of
judicial review in the High Court or Court of Session, but the argument (Cart,
at the end of para.94) that that in itself makes it less likely that the Upper
Tribunal could be so subject when exercising its other functions, seems to me
to assume that which it seeks to prove, namely that the Upper Tribunal is to be
judged by its status rather then by the functions it performs.
[77] There is, of course, a difference between Scotland and England and Wales and Northern Ireland in the judicial review jurisdiction
enjoyed by the Upper Tribunal. As regards cases arising under the law of England and Wales, and under the law of Northern Ireland, the Upper Tribunal has an original judicial review
jurisdiction. In addition, cases may be transferred to it by the High Court.
In respect of cases arising under the law of Scotland, the Upper Tribunal does not have an original judicial review
jurisdiction but can only deal with judicial review matters when they are
transferred to it from the Court of Session. I am not persuaded that this is a
material distinction. In the case of England and Wales and Northern
Ireland, the original
jurisdiction enjoyed by the Upper Tribunal is subject to mandatory transfer in
many cases to the High Court. In cases where the application is commenced in
the High Court, there are circumstances in which there will be a mandatory
transfer to the Upper Tribunal. So also with Scotland. Judicial review cases have to be commenced in the Court of Session.
In many cases, there is no right of discretionary transfer to the Upper
Tribunal. In other cases there is a mandatory transfer. One Act of Sederunt
has presently been made and no doubt others will follow. The net effect, so it
seems to me, is that the Upper Tribunal will have a broadly similar
jurisdiction in respect of judicial review whether the case is one to be
determined under the law of England and Wales or Northern Ireland or that of Scotland. Accordingly, although the means by which a judicial review function is
given to the Upper Tribunal differs in the two instances, I do not think that
this has any material effect on the weight to be given to this factor.
[78] I indicated in para.[76] above that my agreement with the reasoning
in Cart and its application to Scotland was subject
to one caveat. The qualification I have, and it is an important qualification,
is this. The new structure has had brought within it a wide range of
previously disparate jurisdictions. For many of those, and social security is
perhaps a good example, there is everything to be said for a rational and
uniform system of review which should, save in exceptional cases, end with the
decision of the relevant First-tier or Upper Tribunal and only go to the courts
on points of law with leave in accordance with the Act. As is pointed out in Cart,
there will be that stage have been the opportunity for several stages of
argument. But amongst the work now brought within the tribunal system is that
formerly exercised by the Immigration Appeal Tribunal ("IAT"). In R (Sivasubramaniam)
v Wandsworth County Court [2003] 1 WLR 475, the Court of Appeal
was concerned with an application for permission to appeal against the refusal
by a High Court judge of permission to claim judicial review of the decision of
a circuit judge in an employment related case. That case was put before me for
the general discussion as to the extent to which judicial review should be
available in such cases, and I shall refer to it again later in this Opinion.
What is of importance here is that in the course of considering the arguments,
the court discussed the position about claims for judicial review in cases
where the IAT had refused permission to appeal to it against decisions of
special adjudicators. It noted that permission was regularly given in such
cases, and that counsel were unaware of any case in which the practice of
permitting judicial review of decisions of the IAT (refusing leave to appeal)
had been challenged as inappropriate. The court noted (at para [51]) that
"On the face of it, judicial review of such a decision might seem anomalous. ... In reality, the application for permission to claim judicial review [in such cases] comes close to being a renewed application for permission to appeal to the tribunal."
That, in my experience, represents the position in Scotland too. The court asked what was the basis for this practice. It explained its understanding of the position in para [52] in the following terms:
"There are, in our judgment, special factors which fully justify the practice of entertaining applications for permission to claim judicial review of refusals of leave to appeal by the tribunal. In asylum cases, and most cases are asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture. The number of applications for asylum is enormous, the pressure on the tribunal immense and the consequences of error considerable. The most anxious scrutiny of individual cases is called for and review by a High Court judge is a reasonable, if not an essential, ingredient in that scrutiny."
This passage, emphasising the need for anxious scrutiny and review by a High Court judge, was cited with approval in R(G) v Immigration Appeal Tribunal [2005] 1 WLR 1445 at paras.[19]-[26], the only question there being whether that review required an oral hearing or was sufficiently preserved by the statutory review on paper; and see also Sinclair Investments at paras.39-40.
[79] My concern is as to what opportunity there would be for this
anxious scrutiny, for review by a High Court or Court of Session judge, now
that the IAT has been brought within the new tribunal system, if it were held
that the Upper Tribunal had the status of the Court of Session, and was,
therefore, immune from judicial review, save in the exceptional cases where the
tribunal had acted outside its remit or there had been such a complete
breakdown of procedure as to prevent the possibility of a fair hearing.
[80] Let me elaborate on this. The judges of the IAT were senior
immigration judges. It was against their decisions refusing leave to appeal
that the practice referred to in Sivasubramaniam grew up. It was not
considered that scrutiny by senior immigration judges in cases affecting
fundamental human rights, "often including the right to life and the right not
to be subjected to torture" was sufficient. There should be the possibility of
review by a High Court judge. Senior immigration judges are now judges of the
Upper Tribunal: see s.5(1)(d) of the Act. Now that the IAT has become a part
of the Upper Tribunal, as or as part of the Immigration and Asylum Chamber, a
decision on whether to grant leave to appeal from the First-tier Immigration
and Asylum Chamber (formerly a special adjudicator), a decision of the type
previously taken by a senior immigration judge, will now be taken by judges of
the Upper Tribunal. Those judges may be the same people who were previously
senior immigration judges. So, if Cart is correct, by a change of
designation, decisions by persons who were previously senior immigration judges
and are now judges of the Upper Tribunal are rendered immune from the anxious
scrutiny and review by a High Court judge which the Court of Appeal in Sivasubramaniam
emphasised was so essential.
[81] I do not think that the court in Cart can have intended
by its decision to make such a dramatic change in the law relating to decisions
of senior immigration judges in the IAT. The point does not appear to have
been drawn to its attention. Indeed, at the time of the decision the IAT had
not been brought within the new tribunals structure, so the point did not
arise. Nor was it necessary to consider the point for the purpose of deciding
Mr Cart's application. The other application concerned SIAC. The court held
that its decisions were in principle susceptible of judicial review in the
wider sense, and it is difficult to conceive that that decision would have been
different had SIAC been brought within the tribunal system - and, as Laws LJ
pointed out at para.82, the jurisdiction of SIAC and AIT was in many cases
identical.
[82] The question of whether decisions of the Immigration and Asylum
Chamber of the Upper Tribunal are susceptible of judicial review in the manner
described in Sivasubramaniam does not arise for decision in this case,
which is concerned with a situation at the other end of the spectrum. However,
it is relevant to a consideration of Mr Collins' primary submission, that by
virtue of its status the Upper Tribunal (in all its manifestations) was immune
from judicial review save in the exceptional circumstances to which I have
referred. And it leads me to conclude that I cannot accept that submission in
full. Whether that means that I should reject the submission altogether, or
accept it under reservation that it might not apply in respect of all of its
multifarious functions is perhaps a nice point.
[83] One possible solution to the problem may be found in a
consideration of the case of Sinclair Investments, to which I have
already referred. The court was there faced with an application for judicial
review of the Lands Tribunal's refusal of leave to appeal to itself from the
Leasehold Valuation Tribunal. It considered a line of authority, which
included Sivasubramaniam and R(G) v
Immigration Appeal Tribunal, dealing with the proper approach to be adopted
by the High Court to applications for judicial review from inferior courts and
tribunals. In considering the position of the Lands Tribunal, Neuberger LJ, as
he then was, with whom Laws and Auld LJJ both agreed, said this (at paras.]40]
and [41]):
"[40] In the end, the question which needs to be determined in this case is whether the statutory scheme contained in the 1949 and 1985 Acts, and the regulations made thereunder, for appealing decisions of the LVT on service charge issues can be said to amount to what this court variously described in paragraph [54] of Sivasubramaniam (echoed in the passage I have quoted from paragraph [23] in R(G) -v- IAT) as 'an adequate system for reviewing the merits' of the first instance decision, and "fair, adequate and proportionate protection against the risk that [the first instance tribunal] acted without jurisdiction or fell into error". If the statutory scheme satisfies that test, as in the case of the scheme for appealing District Judges' decisions, judicial review of a refusal of permission to appeal will only be granted in the 'exceptional circumstances' as identified in paragraph [56] of Sivasubramaniam and explained in Gregory. If the statutory scheme does not satisfy the test, as in relation to the scheme for appealing special immigration adjudicators' decisions where the IAT refuses permission to appeal, then the "exceptional circumstances" hurdle will not apply, although it seems to me that one might still have to consider whether it is appropriate to have any, and, if so, what, fetter on the court's ability to grant judicial review.
[41] The reasoning in Sivasubramaniam and R(G)
-v- IAT indicates, to my mind, that the resolution of the question at issue
must be resolved by reference to (a) the generic nature of the issues involved
(in this case, residential service charge disputes), (b) the effect of the
statutory procedures concerned, particularly those relating to appeals (in this
case, section 31A of the 1985 Act, section 3 of the 1949 Act, Rules 5C and 5D
of the 1996 Rules, and Paragraphs 2.1 and 5.6 of the Directions), (c) the
nature and constitution of the tribunals involved in those procedures, and (d),
in so far as it can be ascertained, the legislative intention (which in this
case is also to be gleaned from the aforementioned statutes and regulations). These
factors must be assessed (a) against fundamental policy considerations, namely
the desirability of finality, with the minimising of
delay and cost, and the desirability of achieving the legally correct answer,
and (b) against the practicalities, such as the burdens on the Administrative
Court and, in this case, the pressures on the Lands Tribunal."
Applying this approach, Neuberger LJ said (at para.[56]) that the mere fact that the Lands Tribunal was obviously wrong in law to refuse permission to appeal would not be sufficient to justify judicial review of that decision, though there could be a wholly exceptional case (para.[57]) where an error of law might justify intervention, for example if the Lands Tribunal "refused, without any good reason, permission to appeal on a point of law of general application", on which differing views had been expressed, "and which cried out for a definitive answer in the public interest". In the event, in that case the application for judicial review was dismissed. What is of importance for the present case is the identification of the factors relevant to determining the extent to which the courts would feel free to overturn by judicial review decisions made by tribunals and inferior courts; and that, applying those factors to the case of the Lands Tribunal making that type of decision, the more restricted approach was applied. Mr Mitchell QC submitted that that flew in the face of the distinction drawn in Racal, and that the court in Sinclair Investments did not expressly deal with the Racal distinction between administrative tribunals and authorities on the one hand and courts on the other. I accept that the distinction between tribunals and courts is not mentioned in terms, but I think Mr Collins was right to suggest that there had never been hard and fast categories and that the nature of tribunals, and the roles played by some of them, had changed over time.
[84] The
matter was considered again in Strickson where the Court of Appeal had
before it an application for judicial review of the refusal of a decision of a
county court judge refusing permission to appeal to himself from the decision
of a district judge striking out a claim. Laws LJ gave the leading judgment.
Having quoted from Sinclair Investments he said this (at paras.[31] and
[32]):
"[31] The case (see Gregory) where a court or tribunal has acted in complete disregard of its duties is, with respect, only doubtfully an instance of pre- Anisminic jurisdictional error; and the case (see Sinclair) where an appeal tribunal declined to grant permission in order to decide a point of law where there is an imperative need for decision in the public interest, could not, I think, be so categorised. Each of these instances, however, exemplified a defect much more fundamental than an error of law in the particular case.
The judicial review application was dismissed.
[85] These
passages from Sinclair Investments and Strickson appear to me to
point clearly to the conclusion that there will be cases where consideration of
a number of factors, in particular the generic nature of the issues involved,
the effect of the relevant statutory procedures (particularly those relating to
appeals), the nature and constitution of the tribunal in question, and the
legislative intention, all in light of policy considerations such as the
desirability of finality, the minimising of delay and cost, and the desirability of achieving
the legally correct answer (to paraphrase para.[41] of the judgment in Sinclair
Investments), will lead to the conclusion that a judicial review challenge
on full Anisminic grounds cannot be justified; and that judicial review
should only be available in exceptional circumstances such as those there
identified.
[86] This
was not the approach expressly adopted in Cart, which proceeded upon the
basis that the Upper Tribunal was the alter ego of the High Court and
therefore immune. But both Sivasubramaniam and Strickson were both cited with
approval in Cart, and I see no reason why the two approaches should not
be applied in harness. In other words, there is no reason why the question of
the susceptibility of the Upper Tribunal to judicial review should not be
decided by reference to the approach in para.[41] of Sinclair Investments,
by looking carefully at (a) the nature of the tribunal, (b) the mechanisms for
review and appeals in the new tribunals structure created by the Act, (c) the
legislative intention (in so far as this is a separate point), (d) the need to
balance the requirement for finality and the desire to achieve the right result
- all of which, to my mind, point in favour of restricting the grounds of
challenge - but also having regard to (e) the "generic nature of the issues
involved".
[87] Applying this approach, there does not need to be a single
answer to the question whether decisions of the Upper Tribunal are susceptible
of judicial review. Previously a decision of a Social Security Commissioner
refusing leave to appeal to himself was subject to review for intra vires error
of law. I have no doubt that in such cases the scope of judicial review should
now be restricted in the manner contended for, though issues will no doubt
arise as to the precise formulation of when judicial review is permitted. Put
short, in such cases having regard to the nature and status of the Upper
Tribunal, the generic nature of the issues involved does not lead to the
conclusion that a further right of challenge should be available save in
exceptional circumstances. Equally, however, I would not think it right at this
stage to suggest that the scope of judicial review in matters concerning, for
example, the right to life and the right to live free from torture, all matters
over which the Upper Tribunal now has power, having subsumed the functions of
the IAT, should be similarly restricted.
[88] The latter point is not directly before me for decision. But
lest I be misunderstood, I should not be taken as saying that decisions on
matters which were previously decided by the IAT should inevitably remain
subject to the full range of judicial review as described in Sivasubramaniam
at paras.[51] and [52] (see para.[78] above). Much may depend upon the
practice adopted in the Upper Tribunal. If, for example, decisions previously
taken by senior immigration judges are now taken, in the Upper Tribunal, by
judges of High Court rank, there might be no reason to permit a further
challenge by way of judicial review save in exceptional circumstances. And
other practices may develop in light of which the same position might well
obtain. I have been told of intended practice in the Upper Tribunal, but I do
not think it right to go into this in detail. I was asked by both parties to
decide the case before me, particularly the respondent's primary case, on the
basis of the statutory provisions without regard to matters of practice that
may develop, and I prefer to do just that.
[89] Mr Mitchell QC submitted that since Brown v. Hamilton DC
and Watt v Lord Advocate,
judicial review in Scotland had proceeded on the basis of the approach
in Anisminic, and he urged me to reject any other approach. I do not
accept this submission. The dictum of the Lord President in Watt, to
which I have referred, clearly envisages that the distinction between
errors of law which are intra vires and those which are ultra vires
remains a central tenet of Scots law. That view has been followed in many
Outer House cases, for example. by Lord Macfadyen in Rae v. Criminal Injuries Compensation Authority, and by Lord Gill in Milton v Argyll and Clyde Health Board. The Inner House has, on a number of
occasions, declined the invitation to reconsider what was said in Watt:
see Diamond v
PJW Enterprises, and Hyaltech Ltd., Petitioners. It would not be helpful for me to add my own view where
they have forborne to add theirs. But in many fields, so it seems to me, the
courts in Scotland have tailored their approach to the nature of the
tribunal, the subject matter of the dispute and the perceived parliamentary
intention behind any relevant legislation. Thus, the court has been slow to
interfere with decisions of specialist tribunals, and has been restrained in
its approach in reviewing decisions of arbiters, and decisions of adjudicators
under the Housing Grants, Construction and Regeneration Act 1996. The approach
recommended in Sinclair Investments at para.[41] seems to me to be no
more than a comprehensive formulation of the principles already applied in Scotland,
albeit not on a wholly consistent basis. I do not consider that the conclusion
to which I have come is inconsistent with Scottish authority.
Disposal
[90] For the reasons set out, I
accept the respondent's submission that the decision of the Upper Tribunal
under attack in the present case is subject to review only in exceptional
circumstances, i.e. on pre-Anisminic grounds (excess of jurisdiction in
the narrow sense) or because there has been a breakdown of fair procedure. My
reasons are effectively a combination of the respondent's primary and secondary
submissions. It is accepted that the petitioner has not pled a case sufficient
to bring herself within that restricted right of review. I shall therefore
dismiss the petition. I see no point in putting the case out By Order as Mr
Mitchell suggested I should do if I were with the respondent only on his
secondary submission.
Postscript
[91] In his wide-ranging
argument, Mr Mitchell QC raised questions as to the nature of the Upper
Tribunal under the Act which touched upon whether it was, in reality, simply an
English tribunal (a court in Westminster Hall, as it is put in the Union with
England Act 1707). He raised a number of points which are not without
importance. If the respondent is correct in his submissions, as broadly I have
found him to be, in many cases recourse to the courts in Scotland will
be precluded because of decisions taken by persons unqualified in Scots law. English
judges might sit in the Upper Tribunal and pass judgment on Scottish affairs,
and might deal with Scottish judicial review applications. Urgent matters
might be dealt with before the duty Queen's Bench Division judge rather than a
judge of the Court of Session. I note, too, the recent announcement of the
proposed bringing together of the Tribunals Service and the English Courts
Service. I do not need to decide whether there is force in these points. It
does not seem to me that they arise for decision on the case before me, but
they might be relevant in other proceedings.
[92] Finally,
as I was completing this judgment there was brought to my attention a decision
of the Court of Appeal in England in Wiles v Social Security Commissioner
[2010] EWCA Civ 258. All members of the Court had reservations about the
limitations imposed on the scope of judicial review in pre-Act cases in Sivasubramaniam and Sinclair Investment. Nothing
said in that case was directed towards a criticism of the decision in Cart
and it was recognised that the new Act introduced a new regime with which the
Court there was not directly concerned. I did not hear submissions on Wiles.
It seems to me that I should produce my decision and let others take matters
forward in light of the forthcoming decision of the Court of Appeal in Cart
to which Longmore LJ referred in his judgment.