Oct 29 2008

Proposal to remove judicial review from Scottish courts

In a short and little-publicised consultation paper issued on 21 August, and calling for responses by 31 October1, the United Kingdom Border Agency (UKBA) has proposed that judicial reviews to which it is a party should no longer be heard in Scottish courts but in a new UK tribunal under rules to be written by UKBA. This follows the passage of section 20 of the Tribunals, Courts and Enforcement Act 2007, which will, when it comes into force on 3 November, have the effect that Court of Session judges hearing judicial reviews in almost any non-devolved matters may themselves transfer them in their discretion to the new Administrative Appeals Chamber of the Upper Tribunal.

The consultation paper raises important issues as to the transfer of two classes of work away from the Court of Session: (i) immigration appeals and (ii) judicial review. It is apparent that the thinking behind it is that changes should be made in England, and it is then practically assumed that Scotland should follow. There is no separate consideration of issues in Scotland, where the issues are in reality very different; it is striking that the consultation ignored, until a very late stage, such significant interests as the Court of Session judiciary. The language of the paper is revealing, with such phrases as “their equivalents in Scotland” (paragraph 21) as if the author neither knew, nor could be bothered to discover, the right title. It is further an unacceptable aspect that the proposal comes, not from a ‘neutral’ agency, but from one with a partisan interest; and, strikingly, it says “the Government remains to be convinced that [an impartial judicial body] is the appropriate body to set procedure rules‘; it is contemplated that the UKBA, a party to these appeals, would itself write the rules.

The proposal to transfer asylum and immigration appeals away from the Court of Session is not necessarily constitutionally improper in itself, but it is ill-timed for the following reasons:

  • It seeks to pre-empt the Civil Justice Review (which the Consultation Paper does not appear to have recognised as relevant in this context, as the only mention in the paper of the Review, at paragraph 40, is in the context of judicial review); this although the Minister told the House of Commons when the 2007 Act was being debated “we concluded that the judicially led review of the Scottish civil courts announced by the Minister for Justice in the Scottish Executive in March 2006 would be best placed to consider the detail of possible application for second appeals in Scotland” .
  • It also pre-empts the the Administrative Justice Steering Group’s final report, although its first report earlier this month (of which the authors of the Consultation Paper seem unaware) left open whether such proposals as are made in the consultation paper are a preferable option. Indeed, it seems the AJSG wasn’t even told about the consultation, whether out of ignorance or rudeness on the part of the UKBA is unclear.
  • The proposal is to transfer a significant class of business to the new Tribunal before it has started, rather than allowing it to bed down first.
  • There is no obvious demand for it; even in its submission of June 2008 to the Civil Justice Review the Border Agency only suggested it as one possibility, and no other body has ever suggested such a change.

It is concerning that the proposal is to transfer a significant class of business away from a forum in which legal aid is available to a forum in which it is not. When the 2007 Act was discussed in the House of Commons, the UK Government gave an undertaking that legal aid would not be prejudiced so far as English proceedings are concerned2; but there is no parallel undertaking for Scotland. Linked to this, the new forum will have a statutory ‘wasted costs’ jurisdiction, per section 29 of the 2007 Act, which is unheard of in Scottish proceedings for good reason and has been rejected as unsuitable for transplantation to Scotland. In the context of proceedings in this field, that is a jurisdiction in danger of being used for essentially punitive reasons and with the effect of discouraging representatives, particularly standing the endemic problems in the Asylum and Immigration Tribunal of “incivility, the institutional adoption and then defence of legal positions as if the tribunal was a party to proceedings, the dysfunctional approach to expert evidence and the astoundingly high level of successful appeal of tribunal decisions to the higher courts“.

The scheme of section 20 of the 2007 Act was on its face an unprecedented constitutional innovation, providing as it does for the Court of Session to be stripped of parts of its supervisory jurisdiction. When this chapter was considered in Parliament (very much as a late after-thought to other proposals) it does not appear that any attention was given to the Scottish dimension at all. Thus the committee of the House of Commons which considered this contained no Scots member: there was no discussion of section 20 in either House: and amendment was done in such a way that the procedural safeguards of section 18(8) did not apply; on the face of the Act, while an English judicial review before the Tribunal may only be dealt with a judge equivalent to an English High Court judge, a Scottish judicial review may be dealt with by any Upper Tribunal member (Scots or not) such as any English district judge3 . Parliament was soothingly told by the Minister that it was expected that “the power [will be] used comparatively rarely—dozens of times at most and certainly not in large numbers—and that its use is likely to be confined to technical situations ” . The current proposal, however, is for a possible transfer of a very large class of case.

This is, accordingly, a provision to be viewed with considerable wariness. The useful evidence of the Glasgow Immigration Practitioners Group describes how unsuitable the proposals are from the point of view of proper handling of immigration and asylum cases in Scotland. But the proposals have a wider import.

The removal of the power of judicial review from the Court of Session is generally objectionable for the reasons given above, but it is a far more striking constitutional innovation than the removal of immigration appeals. It is constitutionally unacceptable for the supervisory jurisdiction of the Court of Session, a national supreme court, to be transferred to a non-national body, and I find it extraordinary that this should be suggested so casually, for the first time indeed since the Acts of Union. If the proposal were that a Court of Session judge might at his or her discretion transfer a case, as section 20 of the 2007 Act contemplates, that might not be constitutionally improper, but it appears that what is now considered is mandatory transfer in a large class of cases. I doubt there is a supreme court in the world which is subject to a system by which applications to its supervisory jurisdiction are automatically transferred to judges of a different jurisdiction.

There is no need for such a provision in Scotland. I do not believe that any respondent to the Civil Justice Review consultation suggested that there was a problem here; the Border Agency itself said only “we support the establishment of a specialist Administrative Court within the Scottish court structure. Ideally, the Agency is in favour of the creation of designated judiciary within an Administrative Court to deal with immigration matters or, in the alternative,  to devolve judicial reviews in immigration cases to a specialist chamber within the  new Upper Tribunal“. The numbers involved are relatively small; the consultation paper suggests there were 4000 immigration judicial reviews a year in England, but in Scotland there are only between 45 and 101 in recent years4. There is no doubt that judicial review procedure in Scotland could be substantially improved, as discussed in the Civil Justice Review consultation paper, but this proposal ignores and evades that. It is also to be noted that the “2%” success rate quoted in the consultation paper is inapplicable in Scotland, where research shows that (with far fewer cases being brought to the supreme court, due to a greater unwillingness as I believe to bring hopeless cases) the success rate is about 24%.

While it is apparent from the UKBA response to the Civil Justice Review that it generally believes that Scottish procedure should be ‘brought into line’ with England in the interests of respondents, it is equally apparent that there is no understanding that the Scottish system works as a coherent whole, with its own strengths and weaknesses, and that –albeit it is no doubt inconvenient for a London department to have to litigate so far away- there are positive virtues in the Scottish system of a generalist civil court. Immigration judicial review forms a significant percentage of the Court of Session’s administrative law caseload, and its removal would have an adverse effect on its general ability to function as an administrative court.

The proposal infringes the Concordat between the UK Ministry of Justice and the Scottish Government : Annex A, paragraph 3: because it precludes a unified system in Scotland as discussed by the Administrative Justice Steering Group.

As a general matter, whether or not section 20(5) of the 2007 Act were repealed, there should be no mandatory class of cases to be transferred from the Court of Session under section 20 (3). Any such transfer should be a discretionary decision of a Court of Session judge as a matter of principle. Even if this is not seen as a matter of principle, it would be wrong to make transfers of any class of case mandatory until there was substantial experience of how judicial reviews were in practice being dealt with by the new tribunal.

CONCLUSION
The proposals made in the consultation paper, insofar as they affect Scotland, are at best premature. They are, as they affect judicial review, of enormous constitutional importance in Scotland and deserve a full and mature consideration. This consultation, which as UKBA will be aware got off to a very bad start when important Scottish stakeholders were not initially consulted because UKBA did not think about them, is not such.

  1. Originally responses were called for by 16 October; a further two weeks was allowed after protests from important consultees who were not informed until early October. [back]
  2. She said, apparently unaware that there was a separate courts and legal aid system in Scotland, “We intend to change the funding code, which does not require an amendment, so that legal aid for judicial review in the High Court is available if a judicial review is transferred to the upper tribunal. Consequently, the scope of legal aid will be amended.” [back]
  3. Section 6. [back]
  4. Civil Justice Review consultation paper, Table 8; 140 a year according to the Borders Agency exaggerated guess in its response to the consultation. [back]
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4 comments published

4 comments published to “Proposal to remove judicial review from Scottish courts”

  1. JKNo Gravataron 29 Oct 2008 at 11:12 pm

    I think you cover all the fears here. For such massive changes, the consultation paper is surprisingly short and lacking in any detail whatsoever – especially as you point out, in relation to the Scottish dimension. It will be interesting to see the position of UKBA once they have digested the Scottish responses to the consultation.

    Out of interest – where did you get the quote regarding the AIT’s adoption of positions as if a party to the proceedings? I had a look on the website you refer to, but could not see it there.

    Thanks

    JK

  2. JMNo Gravataron 29 Oct 2008 at 11:26 pm

    @JK: Thanks- the more Scottish responses to this consultation the better, and in particular from a general JR perspective. The quote about the AIT was at http://freemovement.wordpress.com/2008/10/14/the-penny-drops/ but I dare say similar quotes could be found elsewhere!

  3. Hector MacQueenNo Gravataron 30 Oct 2008 at 1:25 pm

    Where have Scottish MPs been in all this, one wonders, not least those of a Nationalist or a Liberal Democrat persuasion? One expects little of our Scottish Labour reps at Westminster, and there are so few Tories that I suppose they (or he?) can’t cover everything; but the others might be thought to have at least some ideological interest in these matters.

  4. David MacleanNo Gravataron 15 Nov 2008 at 2:54 am

    I share your outrage.

    What we have here is a centralised administration based in Westminster which seeks to nibble away at the powers of Scotland. I have to believe it is mindful and not just some strategic cock up by some out of control civil servants. So it is mindful.

    As well as providing a cutting edge forensic exposure of this back door stripping of power away from Edinburgh do you have any thoughts about taking more direct action to make your views known ?

    If it is this constitutional shouldn’t we mark it some way so that later generations can take pride in knowing that we weren’t taken for fools and we were at least helpless to prevent it and/or gave up our best to hold our corner.

    Act of Union ?

    Yours

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