Following my earlier post , I now have two Acts of Sederunt, which are not entirely as suspected, and a little more information about legal aid.
New Barrier on Appeals to the Court of Session
The Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2008, SSI 2008/349  (still unpublished, and only available here) was made on the 24 October and came into force yesterday. I will return to the issues as to the way this was made and publicised (or not). Paragraph 7 makes a number of detailed changes in the provisions of Chapter 41 of the Rules of Court, but the real corker is this new rule:
Permission to appeal against decisions of the Upper Tribunal
41.59.—(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.”
This is a significant restriction from the former position, which continues to apply to other appeals against decisions of tribunals, whether under the Tribunals and Inquiries Act 1992, or specific legislation, where the grant of leave to appeal is discretionary. Its purpose, and no doubt its effect, is clearly to make it more difficult to appeal. At least, contrary to the inaccurate description of the Act of Sederunt which was given by the Tribunal in the Second Implementation Review , the barrier on appeals applies only when the decision of the Upper Tribunal was made on an appeal from the First-tier Tribunal, and not when it was made in a judicial review petition.
Judicial Review transfers
A second Act of Sederunt, the Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008 , will come into force on 10 November; again, this is unavailable to the public at present other than on this site. This specifies the class of judicial review petitions which will be automatically transferred to the tribunal as “an application which challenges a procedural decision or a procedural ruling of the First-tier Tribunal, established under section 3(1) of the Tribunals, Courts and Enforcement Act 2007“. In itself that is probably pretty unobjectionable, as the logic of a two-tier tribunal is that such challenges should be made in the appellate jurisdiction rather than the supervisory jurisdiction. It is a very different provision to that in England. What is objectionable is that this is done so speedily and with practically no consultation; it sets down a thoroughly bad precedent for future additions to the list of matters to be compulsorily transferred.
Paragraph 9 of Act of Sederunt no 5 makes uncontroversial provision as to the mechanics of how judicial review petitions are to be transferred to the tribunal, whether under the compulsory or the discretionary provision; what is controversial is whether this should happen at all.
The President of the Tribunal’s Second Implementation Review contains this statement: [These regulations ] and [these regulations ] “bring about consequential changes to ensure the continuation of legal aid provision in light of the implementation of the TCEA 2007. The order allows mental health cases in the First-tier Tribunal to be funded, and appeals and judicial reviews that would previously have been funded in the High Court to be funded in the Upper Tribunal.” So that’s OK in England and Wales. Again, however, we see that the Tribunal itself seems as unconscious as was the Westminster Parliament that no such provision has been made in Scotland.
Secrecy, consultation, and democratic scrutiny
These are important changes, yet they have been made with an almost total lack of consultation and in great, quite unnecessary, haste. Their merits have been decided in secrecy, to the extent that when I asked the Subordinate Legislation Committee  for a copy of the unpublished Act of Sederunt it refused, stating it did not “have ownership”1 .The only excuse offered by the Court, if such it is, is that “the Lords of Council and Session were not in a position to make the Act of Sederunt until they received confirmation that the Upper Tribunal would indeed be established on, and acquire functions from, 3rd November. Due to factors outwith our control, that confirmation was not provided until 23rd October, when the House of Lords approved the draft Transfer of Tribunal Functions Order 2008. The Lords of Council and Session proceeded to make the Act of Sederunt as soon as possible thereafter“. A free subscription to this blog is offered to the first reader to spot the non sequitur.
When I suggested to the Lord Presidents Private Office that the process had been secretive, it replied “The Lords of Council and Session recognise that the Act of Sederunt made under section 20(3) of the 2007 Act, and indeed the whole concept of judicial review applications being transferred from the Court of Session to the Upper Tribunal, whether on a mandatory basis or on a discretionary basis, represents a measure of some constitutional significance. It is for that reason that they sought the views of the Faculty of Advocates, as well as of the Law Society of Scotland, prior to making both of these Acts of Sederunt. I should perhaps point out that, in a letter to the Lord President on 15 September on behalf of the Faculty of Advocates, the Dean of the Faculty indicated that, so far as the mandatory transfer of the judicial review jurisdiction to the Upper Tribunal was concerned, the view from within the Faculty was that this should be limited to points of procedural law arising from the decisions of the First-tier Tribunal. I hope that it is clear from the above that these matters have not been dealt with secretively; on the contrary, a consultation process was carried out ….”
The restriction on rights of appeal also has some significance, I would have thought; yet there seems to have been no consultation and no reason why not, although this restriction has no urgency whatsoever because there will be no decisions of the Upper Tribunal to be appealed for some months. It was not even put before the Court of Session Rules Council  (which, I learn incidentally, has only met once since June 2007; in March this year). Section 13 (6) of the 2007 Act contains a provision conferring power on the Lord Chancellor to make such a rule, but not in respect of Scotland: “The Lord Chancellor may, as respects an application under subsection (4) that falls within subsection (7) and for which the relevant appellate court is the Court of Appeal in England and Wales or the Court of Appeal in Northern Ireland, by order make [such provision]…”. Parliament expressly authorised such a restriction in those jurisdictions. It may be that the UK Government put pressure on the Court of Session to make a similar rule for consistency; it would be very interesting to have the background correspondence. It seems implausible that the suggestion would have come from anyone else.
Why was there no public consultation on any of this? Was even the Justice Committee told? As these changes were rightly seen as “of some constitutional significance“, should there not have been parliamentary oversight? Why were provisions which will not matter until next year put through so speedily? Was this just because the UK government wanted them?
The whole trend of the Administrative Appeals Chamber puts down some very clear markers from London:
- UK administrative law should be centralised from London:
- Scotland doesn’t really matter; it certainly doesn’t require separate consideration:
- The Court of Session cannot be trusted, for example to exercise its own discretion on leave to appeal applications:
- The Scottish Parliament should also be kept out of the loop:
- Proper legal assistance for those acting against the state is not to be encouraged, except insofar as insisted on by Parliament.
- No, I don’t know what that means either. [back ]