Mar 30 2009

“…early days to be thinking about cutting out the court of session altogether…

From a speech by Lord Justice Carnwath, Senior President of Tribunals, entitled Tribunal Reform: the Scottish Dimension‘, given to an invited audience in Edinburgh on 11 February 2009:

It seems anomalous that there should be a unified jurisdiction at the lower tribunal level, and at the highest level (the Supreme Court), while in between we have a bifurcation to the Court of Appeal or the Court of Session. It would seem more logical, economical and convenient for users, if the Upper Tribunal, exercising UK wide jurisdiction, were able to act as far as possible as the final court of appeal for cases which are not going to the House of Lords. The TCEA1 provides a flexible mechanism to enable the Upper Tribunal to be adapted or strengthened as necessary, by bringing in judges from the courts. It is early days to be thinking about cutting out the court of appeal or court of session altogether and it would require legislation. But given the hands-off approach advocated by some members of the House of Lords, we may be moving in that direction.

So there we have it. It is ‘anomalous‘ to have appeals in ‘UK‘ cases going to the Court of Session. It would be ‘logical‘ to be ‘thinking about cutting it out‘. And it would be ‘economical and convenient to users‘ to transfer the Court’s functions to a London-centric tribunal, although it is not explained how. So ‘we may be moving in that direction‘. Thus do empires expand. ‘Of the gods we believe, and of men we know, that by a necessary law of their nature they rule wherever they can.’2

At an earlier point in this speech, Lord Justice Carnwath said this:

It was clear from the outset that “cross-border” issues would loom large in the agenda [of the new tribunal system].

Aye, that’ll be right.

They didn’t ‘loom large‘ when the UK Solicitor General gave Parliament this undertaking:

Those who are eligible for legal aid for a judicial review in the High Court will not be put at a disadvantage if the case is transferred to the upper tribunal. We will therefore extend the scope of legal aid so that they get legal aid

but forgot to tell SLAB or put any arrangements in place for Scotland:

And they don’t ‘loom large‘ on the Tribunal’s website, which tells people in Scotland enquiring about judicial review to use this form to apply to London, rather than petition the Court of Session; the form only applies to English and Welsh cases, but that is nowhere mentioned. Apparently unaware any ‘”cross border” issues loom large‘ or small, the Tribunal asserts if it ‘does not have power to decide a particular judicial review case, it will refer it to the High Court for decision‘.

Roll on the first judicial review petitioner to complain that their petition to the Court of Session was critically delayed by this misinformation.

  1. Tribunals, Courts and Enforcement Act 2007. [back]
  2. Thucydides, 5.105 (The Melian Dialogue). [back]
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