New Judgment: Eba v Advocate General for Scotland  UKSC 29
22 Wednesday Jun 2011
On appeal from:  CSIH 78
Considers the scope for judicial review by the Court of Session of unappealable decisions of the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007.
Held: the Supreme Court unanimously dismissed the appeal; judicial review of the Upper Tribunal was not limited to exceptional circumstances. Permission for judicial review should instead only be granted where the criteria for a ‘second-tier appeal’ apply – ie where there is an important point of principle or some other compelling reason to review the case. Although there are differences in judicial control of administrative actions in Scotland, there is in principle no difference between the law of England and Wales and Scots law as to the substantive grounds on which a decision by a tribunal which acts within its jurisdiction may be open to review. The adoption of the second-tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review the while guarding against the risk that errors of law may slip through the system. Two factors already established in Scots law support the conclusion that Scots law should now align itself with the position in English law. The first is that the court should be slow to interfere with decisions that lie within the expertise of the specialist tribunals. The second is the fact that the limitation on the scope for second appeals in the 2007 Act has been reproduced in the Rules of the Court of Session and it would be inconsistent with the intention behind that rule to provide a wider opportunity for the decisions of the Upper Tribunal to refuse permission to appeal to itself to be reconsidered by way of judicial review. It will be for the Court of Session to give such further guidance as may be needed as to how this analogy with the second appeals criteria should be applied in practice, but ideally the Lord Ordinary should give consideration of whether the criteria are arguably met at the stage of the first order.