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The Tribunals, Courts and Enforcement Act 2007 radically reshaped the landscape of tribunal justice in the United Kingdom. The Act took the diverse array of tribunals that previously existed and, for the first time, consolidated most of them within a single integrated structure. At the apex of this new unified framework sits the Upper Tribunal, a unique judicial body statutorily designated as “a superior court of record” and predominantly headed by High Court judges. In R (Cart) v Upper Tribunal; R (MR Pakistan) (FC) v The Upper Tribunal (Immigration & Asylum Chamber) the Supreme Court determined an important question of principle regarding the nature of the relationship between the Upper Tribunal and the High Court, namely the circumstances in which decisions of the Upper Tribunal are open to challenge in judicial review proceedings. At the same time, in Eba v Advocate General for Scotland the Supreme Court decided an identical issue in relation to the Upper Tribunal in Scotland and the Scottish High Court of Justiciary. Both cases were heard and decided by the same panel of seven Supreme Court Justices. This case comment focuses upon the English appeals.

In Cart and MR (Pakistan) the Supreme Court unanimously departed from the approach of the Divisional Court and the Court of Appeal below and held that judicial review of the Upper Tribunal should be available whenever the intended challenge raises an important point of principle or practice or where there is some other compelling reason for the High Court to hear the claim. In so doing, the Supreme Court assimilated the test for bringing judicial review proceedings against the Upper Tribunal with the circumstances in which the Court of Appeal will hear a second appeal (i.e. an appeal against a decision which was itself a decision on appeal). This is an important decision with significant practical consequences for judges, practitioners and users of the new tribunal system.

The Tribunals Courts and Enforcement Act 2007 and the Upper Tribunal

In order to understand the decision in Cart it is first necessary to understand the background and mechanics of the new arrangement created by the Tribunals, Courts and Enforcement Act 2007 (“the TCEA”). The TCEA was enacted following the report of the Leggatt Committee, Tribunals for users – One System, One Service (2001). The report’s proposals were intended to give tribunals “a collective standing to match that of the Court system” and to bring about “a change in the relationship between tribunals and the courts”. This included “changing the relationship between tribunals and the supervisory jurisdiction of the High Court”.

The new unified tribunal structure consists of two layers. The bottom layer consists of a First-tier Tribunal, which is organised into chambers according to subject matter (e.g. the Social Entitlement Chamber, the Tax Chamber, the Health, Education and Social Care Chamber etc.). The top layer is the Upper Tribunal. This is also organised into Chambers, each of which has its own President. The whole edifice is presided over by the Senior President of Tribunals, who is currently a Lord Justice of Appeal (Carnwath LJ).

The Upper Tribunal performs three functions. First, in certain situations it may be the tribunal of first instance. An example is the Lands Chamber of the Upper Tribunal, which exercises both the first instance and appellate jurisdictions of the former Lands Tribunal. Secondly, the Upper Tribunal has a limited statutory review jurisdiction, which is equivalent to the High Court’s judicial review jurisdiction (ss. 15 – 17 TCEA). In cases that fall within the scope of this jurisdiction, any judicial review proceedings that have been started in the High Court must be transferred across to the Upper Tribunal. Thirdly, the Upper Tribunal performs an appellate function. Under the TCEA, there is a right of appeal to the Upper Tribunal “on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision” (s. 11(1),(2)).

There is a further right of appeal 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(1), (2)). Importantly, the Upper Tribunal’s decisions on whether to grant permission or leave to appeal are “excluded decisions”.

An appeal to the Court of Appeal requires permission from the Upper Tribunal or the Court of Appeal (s. 13(3),(4),(5)). Where the appeal would be a second appeal permission will not be granted unless “(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the [Court of Appeal] to hear the appeal” (Appeals from the Upper Tribunal to the Court of Appeal Order 2008, SI 2008 No 2834, art 2). This test precisely matches the general test for bringing second appeals under CPR 52.13.

The factual background

Each of the appellants had failed in an appeal to the First-tier Tribunal. In Cart, the appellant had unsuccessfully appealed to the Social Security and Child Support Tribunal (whose jurisdiction has since been taken over by the First-tier Tribunal) against a decision of the Child Support Agency. In MR (Pakistan), the appellant had unsuccessfully appealed to the Immigration and Asylum Chamber of the First-tier Tribunal against the refusal of his asylum application.  In each case, the appellant had then been refused permission to appeal to the Upper Tribunal by both the First-tier Tribunal and the Upper Tribunal. The appellants accordingly sought judicial review of the Upper Tribunal’s decision to refuse permission to appeal.

The judgment of the Divisional Court in Cart

In the Divisional Court the Government had suggested that the Upper Tribunal’s designation as a “superior court of record” meant that it was wholly immune to the supervisory jurisdiction of the High Court. However Laws LJ comprehensively demolished this argument, explaining that it was a “constitutional solecism” to suggest that judicial review could be ousted by anything other than “the most clear and explicit words”. The language of the TCEA was no more than a “deeming provision” and accordingly it could not be treated as having ousted the High Court’s judicial review jurisdiction.

However Laws LJ went on to hold that the Upper Tribunal was in fact “the alter ego” of the High Court. Consequently, the Upper Tribunal would not be amenable to judicial review in cases where “acting within the field ascribed to it, the court perpetrates a legal mistake”. Judicial review would only be available “in the grossly improbable event that [the Upper Tribunal] were to embark upon a case that was frankly beyond the four corners of its statutory remit” or in cases where “there has been a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal”.

The judgment of the Court of Appeal in Cart

In the Court of Appeal the Government abandoned the argument that the Upper Tribunal was the alter ego of the High Court. Sedley LJ agreed that it was correct to do so: “the [Upper Tribunal] is not an avatar of the High Court at all: far from standing in the High Court’s shoes…the shoes the [Upper Tribunal] stands in are those of the tribunals it has replaced”.

Having established that the Upper Tribunal was not immune to the High Court’s judicial review jurisdiction, the Court of Appeal held that judicial review would be limited to situations where the Upper Tribunal had committed a pre-Anisminic error of jurisdiction (i.e. when it had decided a question that it had no jurisdiction to decide) or had committed a procedural irregularity of such severity that the claimant had been denied a fair hearing. The Court of Appeal therefore reached the same practical conclusion (albeit by a different route) as the Divisional Court.

The judgment of the Supreme Court

Lady Hale gave the main judgment in the Supreme Court. She began by explaining that “the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law – that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, in particular the law which Parliament has enacted, and not otherwise.” Tribunals and courts both make mistakes. The question is “what machinery is necessary and proportionate to keep such mistakes to a minimum?” In particular “should there be any jurisdiction in which mistakes of law are, either in theory or in practice, immune from scrutiny from the higher courts?”

There were three possible ways forward. First, the Supreme Court could adopt the approach of the courts below and hold that the new system is such that the scope of judicial review should be restricted to pre-Anisminic excess of jurisdiction and the denial of fundamental justice. Secondly, the Court could simply hold that judicial review remains available in no more attenuated form that under the old system. Thirdly, the Supreme Court could adopt a course that lies somewhere between these two options and hold that judicial review is limited to the grounds upon which permission to make a second-tier appeal to the Court of Appeal would be granted.

Lady Hale rejected the “exceptional circumstances” approach. Reviving the distinction between jurisdictional and non-jurisdictional errors would involve “a return to some of the technicalities of the past”. Moreover while Parliament has power to provide that a tribunal of limited jurisdiction should be the ultimate interpreter of the law which it has to administer, the TCEA contains “no clear and explicit recognition that the Upper Tribunal is to be permitted to make mistakes of law.” Without adequate judicial review there is “a real risk of the Upper Tribunal becoming in reality the final arbiter of the law, which is not what Parliament has provided.” The approach of the Court of Appeal in Cart was therefore “too narrow” since it gave rise to the “possibility that serious errors of law affecting large numbers of people will go uncorrected.”

Lady Hale also rejected the second option: maintaining the status quo. The problem with this model was that “it is not difficult to dress up an argument as a point of law when in truth it is no more than an attack upon the factual conclusions of the first instance judge”. Until the introduction of statutory reviews the High Court and Court of Appeal had been “overwhelmed” with judicial review applications in immigration and asylum cases. Accordingly, the Supreme Court should adopt an approach that is “principled but proportionate”. Unrestricted review of the Upper Tribunal would not achieve this.

Lady Hale therefore favoured the third approach: the adoption of the second-tier appeals criteria. She explained that:

“the adoption of the second-tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself. It would recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual.” [Emphasis added]

Lord Dyson also rejected the “exceptional circumstances” model. The distinction between jurisdictional and non-jurisdictional errors of law is “artificial and technical” and “does not promote the law”. In comparison, the second appeals test has a number of advantages. First, it does not suffer from the defects of the alternative approaches. Secondly, it ensures that errors on important points of principle or practice do not become fossilised within the Upper Tribunal system and can be corrected by the courts. Thirdly, the “other compelling reason” limb of the second appeals test would enable the court to examine an arguable error of law in cases that do not raise important points of principle or practice but which nonetheless cry out for consideration by the court. Two examples were: (a) cases where it is strongly arguable that the individual has suffered “a wholly exceptional collapse of fair procedure”; and (b) cases where it is strongly arguable that there has been an error of law which has caused “truly drastic consequences”.

The other five Justices all agreed that the second-tier appeals criteria should be adopted. In reaching this conclusion, Lord Phillips considered the sensitive constitutional relationship between Parliament and the High Court:

“The administration of justice and upholding of the rule of law involves a partnership between Parliament and the judges. Parliament has to provide the resources needed for the administration of justice…It should be for the judges to decide whether the statutory provisions for the administration of justice adequately protect the rule of law and, by judicial review, to supplement these should it be necessary. But, in exercising the power of judicial review, the judges must pay due regard to the fact that, even where the due administration of justice is at stake, resources are limited. Where statute provides a structure under which a superior court or tribunal reviews decisions of an inferior court or tribunal, common law judicial review should be restricted so as to ensure, in the interest of making the best use of judicial resources, that this does not result in a duplication of judicial process that cannot be justified by the demands of the rule of law.” [Emphasis added]

Lord Phillips concluded his judgment by addressing an important practical matter. It would be “totally disproportionate”, he said, if judicial supervision of the Upper Tribunal were to extend to the four stage system of paper and oral applications first to the Administrative Court and then, by way of appeal, to the Court of Appeal, to which the ordinary judicial review procedure is subject. Accordingly, Lord Phillips believed that “applications for judicial review should be restricted to a single paper application, unless the court otherwise orders”. However he emphasised that this was a matter for the Civil Procedure Rules Committee and not for the Court.

Comment

The Supreme Court’s decision in Cart has significant practical implications for litigants in the Upper Tribunal. The possibility that important errors of law could become entrenched and immune from correction understandably caused the Justices considerable concern. By adopting the use of the second-tier appeals criteria, the Supreme Court endorsed a significantly broader approach than the Divisional Court and the Court of Appeal. Under the “exceptional circumstances” test judicial review would only be available in the rarest of cases. As Laws LJ noted, it is “grossly improbable” that the Upper Tribunal would actually travel beyond its statutory remit and decide an issue that it has no power to decide. Similarly, it will be exceedingly rare for the Upper Tribunal to act in a way that totally deprives an applicant of a fair trial. By contrast, it is somewhat easier to imagine situations where a decision on a point of law raises an “important point of principle or practice”. Any decision with potentially significant repercussions for future cases is arguably caught by this phrase.

The reasons given by the Justices for adopting the more expansive test – most notably the risk of bad law becoming fossilised within the new tribunal system – are compelling. However at the same time it cannot be denied that the judgments in Cart are nakedly policy driven. Lady Hale, Lord Dyson and Lord Phillips all employed the language of proportionality in order to justify the adoption of the statutory second appeals test as a filter for judicial review of the Upper Tribunal. This is not necessarily a criticism of the Justices. If ever the courts can be forgiven for indulging in a policy driven approach, it is in the province of access to justice, where the courts are best placed to assess the likely consequences of restricting or expanding the scope of judicial supervision. In the view of this author, the compromise solution adopted by the Supreme Court is eminently sensible.

However important practical questions remain. In the light of the Supreme Court’s ruling, amendments to the CPR seem extremely likely. But will the Civil Procedure Rules Committee adopt Lord Phillips’ proposal of limiting claims to one paper application, save where the Administrative Court orders otherwise? And what will happen in the meantime? Can litigants avail themselves of the existing panoply of challenges that are available in normal judicial review claims? If so, we may shortly expect to see a glut of judicial review litigation, particularly in the asylum and immigration context.

Then there is the question of the practical application of the second appeals criteria. It is true that the courts are well accustomed to applying this test in the appellate context. However the language of the test allows considerable room for manoeuvre. While there is no reason to assume that the Administrative Court will adopt a radically different construction, the meaning of “important point of principle or practice” and “other compelling reason” are broad and open to interpretation. Will the Administrative Court be tempted to adopt a more generous or restrictive approach when applying this test?

Overall the judgment in Cart provides a welcome clarification of the relationship between the High Court and the Upper Tribunal. It provides a clear set of criteria for regulating the availability of judicial review against unappealable decisions of the Upper Tribunal. And it strikes an appropriate balance between access to justice and resource constraints. However the reconstruction of the tribunal system brought about by the TCEA is still bedding in. For all of its good sense, it is unlikely that the Supreme Court’s judgment in Cart will be the final word in this area.