Jonathan Mitchell QC

This important new tribunal, with judicial review jurisdiction, really deserves a far fuller post than it is going to get from me right now. However, this should I hope give the basic information on the Administrative Appeals Chamber which comes into existence in Scotland on 3 November; see also ‘Proposal to remove judicial review from Scottish courts‘ for further proposed changes. I would particularly welcome corrections, additions, updatings, or further links on this item: comments below, please. Note: expanded and updated, 1 November; 2 November.

The Tribunals, Courts, and Enforcement Act 2007 established on the face of the Act two new tribunals, a ‘First-tier Tribunal’ and an ‘Upper Tribunal’, with a UK-wide jurisdiction. The First-tier Tribunal is not my immediate concern; it has three ‘chambers’ which take over the functions of a wide range of existing tribunals and other bodies¹. The Upper Tribunal has at present only one ‘chamber’; the ‘Administrative Appeals Chamber’. This has two broad functions; to hear appeals from the First-tier Tribunal and to decide judicial reviews transferred to it from the Court of Session, or the English or Northern Irish High Courts. With effect from 3 November, the Court of Session has, under section 20 of the 2007 Act, the power² to transfer any application to the supervisory jurisdiction to the Administrative Appeals Chamber if three conditions are met:

• First: that ‘the application does not seek anything other than an exercise of the supervisory jurisdiction of the Court of Session‘;
• Second: that ‘the subject matter of the application is not a devolved Scottish matter‘³; and
• Third: that, in effect, it is not to do with immigration or nationality⁴.

The website of the new Tribunal is here; this went live on 31 October, with an opaque statement that “The proposals are to transfer more judicial review powers to the Upper Tribunal once it is established”. It seems to be suffering teething problems; Practice Directions and Practice Statements are instead on the website of the English & Welsh Judiciary, with a notice that “These documents will appear on the Tribunals Service website but haven’t as yet due to technical difficulties”. Although the website doesn’t say so, it appears from other sources that the Scottish base will be at 126 George Street, Edinburgh EH2 4HH (phone: 0131 271 4310; fax: 0131 271 4398; email: unknown), formerly the office of the Social Security and Child Support Commissioners.

Practice Note no 3 of 2008, dealing with applications for discretionary transfers of judicial review petitions to the Tribunal, has now been published⁵.

The Upper Tribunal Rules 2008 are here, and the explanatory note is here. See also the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (draft only); meanwhile there is a Practice Statement on tribunal composition; the only Practice Direction as yet deals with transcripts of hearings. There is a Tribunal Procedure Committee; send it any issues as to the rules.

Some important points, so far as Scottish judicial review proceedings in the Tribunal are concerned, are these:

• Section 6 of the 2007 Act: any Upper Tribunal member (and that includes ex officio all English district and county court judges as well as all full time sheriffs) can hear a Scottish judicial review. Section 18, which provides that judicial reviews may only be heard by High Court/Court of Session judges or those ticketed as equivalents, applies only to English and Northern Irish cases.⁶ Paragraphs 12 and 13 of Annex 3 of the Second Implementation Review⁷, however, suggests Scottish judicial reviews will normally be heard by English judges; and urgent business will be heard by the Duty Judge of the Queens Bench Division of the English High Court.
• Rule 11: Rights of audience and litigation are not restricted to lawyers. A party can appoint anyone as a representative.
• Rules 2 and 3: An English-style ‘overriding objectives‘ provision; time and effort given to be ‘proportionate‘; an obligation on parties and representatives to ‘help‘ and ‘co-operate with the Upper Tribunal generally‘; and an ADR provision.
• Rules 5, 6, 7, 15, and 27 in particular: The tribunal can do what it wants, and can do so ex propriu motu; it can transfer back to the Court of Session (or indeed to the English or Northern Irish High Court).
• Rule 10 read with section 29 (1): There is no general right to expenses. Expenses may only be awarded ‘if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings.’ Taxation is by the Auditor of the Court of Session, on the Court of Session scale.
• Section 29 (4) and (5): There is however provision for orders for expenses to be made against representatives personally, mirroring the English ‘wasted costs’ jurisdiction under section 51 of the Supreme Court Act 1981, as substituted by section 4 of the Courts and Legal Services Act 1990. The leading case on this is Medcalf v Weatherill & Anor [2002] UKHL 27; see in particular paragraphs 51 to 59. “Once the power to initiate wasted costs procedures is extended to the opposite party in the litigation, that party is provided with a weapon which it is too much to expect he will not on occasions attempt to use to his own advantage in unacceptable ways”⁸.
• Rule 18: This contemplates that legal aid (or possibly ABWOR?) might be granted in the Upper Tribunal in Scottish proceedings. But there is no provision, so far as I can see, for either so far as Scottish legal aid legislation is concerned. When the 2007 Act was under consideration in the House of Commons, it was pointed out by English MPs that it would be wrong if legal aid was not available for judicial review in the Tribunal on the same basis as in the English High Court, and the Minister gave undertakings. But nobody noticed Scotland. It’s only the UK Parliament, after all.⁹
• Rule 34: The ‘Tribunal may make any decision without a hearing‘. But it ‘must have regard to any view expressed by a party when deciding whether to hold a hearing to consider any matter’. See ASC Ltd v Geminax, [2008] CSIH 55.
• Rules 44 to 46: Complex provisions as to further appeal, for which leave is required (from either the Tribunal or, if it refuses leave, the Court of Session: section 13). The Implementation Review of 30 October states “The Act of Sederunt (Rules of the Court of Session Amendment No.5) (Miscellaneous) 2008 will provide that permission to appeal a decision of the Upper Tribunal to the Court of Session shall not be granted unless the court considers that the proposed appeal would raise some important point of principle or practice; or there is some other compelling reason for the court to hear the appeal“; but this has not been published, either on the Scottish Courts site or anywhere else; and it is not clear if it has even been written. Presumably any appeal will be to the Inner House under Chapter 41 of the Rules of Court.
• Time limits: there is a useful guide on the website of the (now-abolished) Social Security Commissioners.

From the point of view of legally-aided petitioners counsel, accordingly, the overall effect seems to be: you won’t get paid; you have to ‘help‘ the tribunal; and if you can be faulted after the event for any ‘unreasonable act or omission‘  you may have to pay HMG’s expenses out of your own pocket.

There is rather a last minute rush as to all of this. The Rules were not laid before Parliament until 15 October¹⁰. As late as 24 October, the Senior President of the Tribunal wrote “Each tribunal office-holder transferring into the new chambers will receive a letter within the next couple of weeks setting out to which office and chamber their current judicial office will move (if you hold more than one judicial office you will receive a letter for each). All judiciary and legal officers transferring into the new structures will receive jurisdiction-specific training and training leads will be in touch to confirm. Arrangements have also been made for the training of staff. “

1. First-tier Tribunal and Upper Tribunal (Chambers) Order 2008. Further chambers may be established in 2009, as further functions are transferred. [back]
2. Only a power, not a duty, because there is not yet an Act of Sederunt under section 20 (3). There is, however, already a direction for limited compulsory transfer in England. [back]
3. Defined by section 20 (7). [back]
4. See this earlier post for the UKBA’s consultation on removing this condition. The consultation may be little more than a formality; the Senior President of the Tribunal has already said ‘40… Subject to seeing the responses to consultation, I welcome this proposal‘. [back]
5. See also Practice Note no 4 of 2008. [back]
6. Why is there no Scottish equivalent to section 18(8)? Ask the Advocate General. [back]
7. This Annex gives useful information as to the practical operation of the Tribunal which is unobtainable elsewhere. [back]
8. As is still shown by cases such as Mitchells Solicitors v Funkwerk Information Technologies York Ltd [2008] UKEAT 0541, where an order was made against solicitors (overturned on appeal) “on the basis that they ought to have advised [their client] … that her case would fail“. [back]
9. And I don’t suppose anyone told SLAB, did they? [back]
10. The background is explained in the Senior President’s ‘Second Implementation Review‘ of 30 October. [back]

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