UKSC 29
On appeal from:  CSIH 78
Eba (Respondent) v Advocate General for Scotland (Appellant) (Scotland)
Lord Phillips, President
Lord Hope, Deputy President
JUDGMENT GIVEN ON
22 June 2011
Heard on 14, 15, 16 and 17 March 2011
David Johnston QC
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
Jonathan Mitchell QC
(Instructed by Quinn Martin and Langan)
|Intervener (Public Law Project)
Michael Fordham QC
(Instructed by Herbert Smith LLP)
Alex Bailin QC
Aidan O'Neill QC
(Instructed by Freshfields Bruckhaus Deringer LLP)
|Intervener (Lord Advocate)
James Mure QC
(Instructed by The Scottish Government Legal Directorate)
LORD HOPE, delivering the judgment of the Court
"It would be significantly to users' benefit to use that appeal system, rather than have recourse to the more complicated procedures and more limited remedies of judicial review. We think that this latter possibility should be excluded. Slightly different arguments apply to the appellate Division and first-tier tribunals."
In para 6.31 it offered two options for the removal of judicial review from the Upper Tribunal. One was to constitute all the appeal tribunals a superior court of record, as had already been done with the Employment Appeal Tribunal and the Transport Tribunal. The other was to exclude judicial review by express statutory provision. It recognised that the option of designating most of the First-tier Tribunals as superior courts of record was manifestly inappropriate. The recommendation in their case was a statutory provision prohibiting review of their decisions where there was a right of appeal which had not been exercised.
"(a) any decision of the Upper Tribunal on an appeal under section 28(4) or (6) of the Data Protection Act 1998 (c 29) (appeals against national security certificate),
(b) any decision of the Upper Tribunal on an appeal under section 60(1) or (4) of the Freedom of Information Act 2000 (c 36) (appeals against national security certificate),
(c) any decision of the Upper Tribunal on an application under section 11(4)(b) (application for permission or leave to appeal),
(d) a decision of the Upper Tribunal under section 10
(i) to review, or not to review, an earlier decision of the tribunal,
(ii) to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal, or
(iii) to set aside an earlier decision of the tribunal.
(e) a decision of the Upper Tribunal that is set aside under section 10 (including a decision set aside after proceedings on an appeal under that section have begun), or
(f) any decision of the Upper Tribunal that is of a description specified in an order made by the Lord Chancellor."
"(a) that the proposed appeal would raise some important point of principle or practice, or
(b) that there is some other compelling reason for the relevant appellate court to hear the appeal."
An order to this effect has been made by the Lord Chancellor: see The Appeals from the Upper Tribunal to the Court of Appeal Order 2008 (SI 2008 No. 2834), which came into force on 3 November 2008.
"(1) This rule applies where an application is made to the court under section 13(4) of the Tribunals, Courts and Enforcement Act 2007 for permission to appeal a decision of the Upper Tribunal which falls within section 13(7) of that Act and for which the relevant appellate court is the Court of Session.
(2) Permission shall not be granted on the application unless the court considers that
(a) the proposed appeal would raise some important point of principle or practice, or
(b) there is some other compelling reason for the court to hear the appeal."
As a result the position in relation to the granting of permission for a second appeal is now the same in the Court of Session as it is in the High Court under the statute. But it should be noted that the Scottish Rule of Court does not apply to applications made to the Upper Tribunal as opposed to the Court of Session, while the Order in other parts of the United Kingdom applies to applications to either the Upper Tribunal or the Court of Appeal.
Some areas of common ground
Watt v Lord Advocate
" it seems clear that, however much this is to be regretted, the Court Session has never had power to correct an intra vires error of law made by a statutory tribunal or authority exercising statutory jurisdiction. As Lord Justice Clerk Moncrieff said in Lord Advocate v Police Commissioners of Perth (1869) 8 M 244 at p 245 'In the ordinary case it would now, I think, be held that where statutory powers are given, and a statutory jurisdiction is set up, all other jurisdictions are excluded ' There is no indication in any subsequent authority that this view has been doubted or even questioned and I entirely agree with the Lord Ordinary for the reasons which he gives that the fact that the Court of Session may have exercised a comprehensive corrective jurisdiction over determinations of parochial aid in the 18th and early 19th Centuries does not in any way support the existence of a jurisdiction in this court to correct errors by a statutory tribunal in the due performance of its statutory duties."
"It is not necessary for me to consider the grounds on which judicial review may be open. The decisions in the English cases of Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223, and Anisminic Ltd v Foreign Compensation Commission  2 AC 147, so far as they relate to matters of substance and not of procedure, are accepted as being applicable in Scotland: see Watt v Lord Advocate 1979 SC 102. There is no difference in substance between the laws of the two countries on this matter ."
It does appear however that, in expressing the position as narrowly as he did in Watt, the Lord President failed to appreciate the significance of the decision in Anisminic, which abolished the distinction between errors of law that went to jurisdiction only in the strict sense and those that did not: Clyde and Edwards, Judicial Review, paras 22.21-22.24.
"It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity."
There then followed a list of examples which, as Lord Reid said was not intended to be exhaustive of errors that fell into that category, including where the tribunal has misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question that was not remitted to it, has refused to take into account something that it was required to take into account or has based its decision on some matter which it had no right to take into account. He ended this passage with these words, which indicate precisely where the boundary lies between what is open to review and what is not:
"But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly."
The extent of the remedy in English law
Should the same approach be followed in Scotland?
"The extent of the supervisory jurisdiction is capable of a relatively precise definition, in which the essential principles can be expressed. But the substantive grounds on which that jurisdiction may be exercised will of course vary from case to case. And they may be adapted to conform to the standards of decision-taking as they are evolved from time to time by the common law."
There is an element of flexibility within this system that has enabled the grounds of judicial review to be adapted to a diverse range of decision-making bodies. As the Lord Ordinary observed, the Court of Session has been slow to interfere with decisions of specialist tribunals, and it has been restrained in its approach in reviewing decisions of arbitrators and decisions of adjudicators under the Housing Grants, Construction and Regeneration Act 1996: 2010 SLT 547, para 89. This can be compared with the cautious approach to giving permission to appeal from decisions of the Social Security Commissioners in England and Wales because of their particular expertise in a highly specialised area of the law that was indicated by Hale LJ in Cooke v Secretary of State for Social Security  EWCA Civ 734,  3 All ER 278, paras 15-17.
(a) Lord Reid's observation in Anisminic Ltd v Foreign Compensation Commission  2 AC 147, 171 that if a statutory tribunal decides a question remitted to it for decision without committing an error of law as to what that question is, it is as much entitled to decide that question wrongly as it is to decide it rightly remains the basic yardstick: see also West v Secretary of State for Scotland 1992 SC 385, p 413, para 2.
(b) The court must then distinguish between errors of law that raise an important issue of principle or practice, or reasons that are compelling, and those that do not answer to this description. The question whether the application meets this test must depend on the facts of each case. It ought to be capable of being applied at the earliest possible stage, and certainly at the stage of the first hearing, as a matter of relevancy.
(c) Under the current rules a person who invokes the supervisory jurisdiction does not require permission to do so. But a petition for judicial review can be dismissed at the stage of a motion for a first order: Sokha v Secretary of State for the Home Department 1992 SLT 1049; Butt v Secretary of State for the Home Department, 15 March 1995, unreported (1995) GWD 16-905. As the law currently stands, the hurdle that a petitioner must cross for a motion for a first order to be granted is a low one: Y v Secretary of State for the Home Department 2011 SLT 508; see para 28, above. I think that this is perfectly acceptable as the test for use in relation to applications to the supervisory jurisdiction of the Court of Session generally. But its application to that special category of cases where a petitioner seeks to bring unappealable decisions of the Upper Tribunal under review needs now to be reconsidered.
(d) The ever-increasing pressure on the court's business by applications for judicial review to which our attention has been drawn, together with the fact that the new tribunal structure requires that a more restrained approach be taken to judicial review of decisions of this kind, suggests that the Lord Ordinary to whom a petition is presented under rule 58.7 for a first order for the review of an unappealable decision of the Upper Tribunal should be encouraged to consider the question whether there is an arguable case that the criterion referred to in para (b) is satisfied before he or she decides whether or not a first order should be granted. It seems to me, with respect, that the approach which Lady Smith took to this issue in the Outer House when she declined to grant the petitioners' motion for first orders because she was not satisfied that an arguable case had been made out in Y v Secretary of State for the Home Department 2010 SLT 170, paras 12-14, has much to commend it, and that it would be appropriate for use in relation to cases falling within this special category.
Other Scottish Tribunals