Dec 15 2009
Statutory provisions seeking to oust the jurisdiction of the courts have a long and inglorious history. Their desired object, to exclude any form of review by an independent court, is practically impossible to achieve. Some years ago, someone thought up a new wheeze: simply describe the body which it is sought to protect as a ‘superior court of record‘ and then assert loudly that the nature of such a court was that it could not be judicially reviewed; all rather reminiscent of the old South African line that Parliament could be declared a court so as to allow a bare majority to change the constitution (Minister of the Interior v Harris 1952 (4) SA 769). This phrase has, since the Leggatt Report, become fashionable with recently-created tribunals. Examples include the Special Immigration Appeals Commission and the Upper Tribunal, both of which are now declared to be such a court; the latter is becoming an increasingly important, if overlooked, part of the judicial firmament. Never mind that ‘the precise legal significance of this expression is not entirely clear, even in England, and possibly not at all in Scotland‘; indeed, as noted below, it has ‘no recognised meaning in Scotland‘. The simple argument was that superior courts of record could not be subject to judicial review, because they couldn’t be.
In the recent English case of Cart & Ors, R (on the application of) v The Upper Tribunal & Ors  EWHC 3052 (Admin), this argument was run by Government and rejected by the court. The court went on, however, to hold that the UT, although not SIAC, was so closely related to the English High Court that the court should only permit judicial review to proceed in exceptional cases. That is under appeal, according to this note from Landmark Chambers.
This is to note the parallel Scottish litigation, Eba v Secretary of State for Work and Pensions, in which I act for the petitioner with Joe Bryce, and Simon Collins acts for the respondent. This is now going to a hearing in January which will discuss relevancy and merits, but earlier it had been put down for a hearing on competency. Following the decision in Cart, the Secretary of State accepted that judicial review of an unappealable decision of the Upper Tribunal was competent. This is I think worth recording because the argument is likely to re-surface. Having put some time and effort into the written argument which turned out not to be needed, I give it below.
NOTE ON COMPETENCY FOR THE PETITIONER
1. This note is produced in respect of the interlocutor of the Lord Ordinary of 30 September 2009. The issue as to competency is whether a petition for judicial review of an unappealable decision of the Upper Tribunal arising under Scots law is competent; that is to say, whether that tribunal is subject to the supervisory jurisdiction of the Court of Session.
2. Any inferior court, or tribunal, is so subject; a supreme court is not: Moss’s Empires v Assessor for Glasgow, 1917 SC (HL) 11. Unless the Upper Tribunal is to be characterised as in this sense a ‘supreme court’, there could be no dispute but that it was subject to the supervisory jurisdiction, as were its ancestors such as the Social Security Commissioners and the Asylum and Immigration Tribunal2. The argument for the respondents is however understood to be that the Upper Tribunal is to be so characterised either because, per section 3(5) of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act), it is a ‘superior court of record’ or because it is in some sense an ‘alter ego’, whatever that may mean, of the Court of Session. It will, it is understood, be said that the Tribunal has in effect a status equal to (or possibly indeed higher than) that of the Court of Session, which is not merely a ‘superior’ court but the supreme court.
THE CONSTITUTIONAL POSITION
3. It is “the province of the Court of Session to redress all wrongs for which a peculiar remedy is not otherwise provided”: Erskine, Institutes, I.iii.23. That is in its nature as a supreme court. It has repeatedly been pointed out that it is ‘one of the attributes of a supreme Court which belong to the Court of Session… that the supreme Court has (precisely because it is a supreme Court) power by way of reduction over even its own decrees’: Jarvie’s Tr. v Bannatyne, 1927 SC 34 at 38. The Court was entrenched by Article XIX of the Union with England Act 17072. Yet the proposition for the respondent is both fundamental and far-reaching: that a necessary attribute of the Court of Session as the supreme court of Scotland may be removed by a statutory by-wind in such a manner that there comes into existence a tribunal which may make any error, or act beyond its jurisdiction to any extent, in a manner entirely free from the control of either the Court of Session or any court whatsoever, although the overwhelming majority of its members are not even legally qualified in this jurisdiction3. That proposition is unconstitutional: it assumes that areas of public life may be placed beyond the law4. If correct, presumably the Home Office could be erected into a ‘superior court of record’ and so put beyond judicial scrutiny; the Scottish Parliament might so declare itself5. That has echoes of the unsuccessful argument in Minister of the Interior v Harris 1952 (4) SA 769. On any view, that is such a novel and significant proposition that one might reasonably expect that Parliament, in being asked to enact provisions with such an effect, would have been told that this would be their effect; but the Parliamentary history of the 2007 Act is devoid of any such statement.
4. When the 2007 Act was presented to the Westminster Parliament, a Sewel motion was made to the Scottish Parliament in respect of Part 1 of the bill and this was passed without substantial debate6. At no point was the Scottish Parliament informed that the practical effect of what it was being asked to do was to remove the supervisory jurisdiction of the Court of Session; this was not mentioned, presumably because it had not occurred to those in Her Majesty’s Government then responsible for the Bill (or to the Council on Tribunals, who gave evidence on the effect of Part 1 of the Act, or to Scottish Ministers, or indeed to anyone else) that that would be its ultimate effect.
SECTION 3 (5) OF THE 2007 ACT
5. The primary argument for the respondent in the English case of Cart v Child Maintenance and Enforcement Commission, 2009 EWHC 3052 was that it was this subsection which excluded the supervisory jurisdiction of the English court (although, as the High Court pointed out, the argument was differently phrased, that was its substance: paragraphs 28 to 33 in particular). However, as there observed by the English court, if it were possible to exclude the supervisory jurisdiction of the Court by statute (a doubtful proposition), very clear language would be required before it could be said that a statute had done so. Section 3 (5) is not such language. It is certainly not such language in Scotland. The phrase ‘superior court of record’ is ‘not a term which has any recognised meaning in the law of Scotland’7. Thus the present respondent was right to accept, as he did in Cart v Child Maintenance and Enforcement Commission8, that ‘in Scotland… the term “superior court of record” has no particular significance…. [it] is meaningless in Scotland’. Further, while there are a number of tribunals with a UK-wide jurisdiction which are statutorily characterised as ‘superior courts of record’, such as the Employment Appeal Tribunal, it has never previously been suggested when attempts have been made to judicially review their decisions in Scotland that this phrase excludes the supervisory jurisdiction of he Court of Session and there are numerous cases in which it did not9. Until the present case, there seems to be no public record of any suggestion at any time by any judge, by any advocate, by any legal academic, indeed by any authority whatsoever, that it might do so.
6. There may however be a line of argument for the respondent that, meaningless as this phrase is in Scots law, it has a clear meaning in the English legal system; and that its effect is, in English law, to exclude judicial review because a ‘superior court of record’ is necessarily not subject to the supervisory jurisdiction of the High Court of England. That argument was considered and rejected by the English High Court in Cart v Child Maintenance and Enforcement Commission, 2009 EWHC 305210. The petitioners position on this is that that argument may or may not be correct; that is ultimately a matter for the English courts to decide11. But it has nothing to do with the jurisdiction of the Court of Session and thus nothing to do with the determination of this case. This case is not a modern example of the rhetorical question notoriously posed in Bartonshill Coal Co. v Reid (1858) 3 Macq. 266 (at page 285): cf. Tonner v Reiach & Hall, 2008 SC 112.
7. It is trite law that the supervisory jurisdictions of the Court of Session, and of the English High Court, rest on entirely different principles; and it is equally trite law that there are bodies and persons who are subject to the supervisory jurisdiction of the Court of Session although, in English law, they would not be subject to the supervisory jurisdiction of the High Court: West v Secretary of State for Scotland 1992 SC 38; “1. The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument. 2. The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires. 3. The competency of the application does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review, nor is it correct in regard to issues about competency to describe judicial review under Rule of Court 260B as a public law remedy. “ So again Tehrani v Home Secretary 2007 SC (HL) 1: “The supervisory jurisdiction has its origins in the principle that, where an excess or abuse of the power or jurisdiction conferred in a decision-maker is alleged, the Court of Session in the exercise of its function as the supreme court has power to correct it”. This is a principle which cannot be affected by any consideration as to the extent of jurisdiction of the English High Court over courts and tribunals in English law.
8. This phrase may be misleading but is taken as shorthand from Cart. The Upper Tribunal is a decision-maker on which a jurisdiction has been conferred by statute. It is thus a tribunal of limited jurisdiction (Cart, paragraph 77.)). It cannot exercise the nobile officium. It cannot make a declaration of incompatibility under the Human Rights Act13. It is not, as Laws LJ phrased the issue in Cart14 an alter ego of the Court of Session. This is a question which falls to be answered independently in England and in Scotland. It is inferior to the Court of Session; an appeal lies from it to the Court of Session as the Supreme Court of Scotland. No other court supervises it. It cannot be compared to the Lands Valuation Appeal Court which is a supreme court and from which no appeal lies to the Court of Session15 or the Registration Appeal Court16; each of these is necessarily composed of judges of the Court of Session appointed under the direction of the Lord President. It can only be subject to the supervisory jurisdiction of the Court of Session, as is, for example, the Employment Appeal Tribunal; although that may be chaired by a judge of the Court of Session, it includes many other members. As will be pointed out below, Scots law provides no possible remedy in respect of any excess or abuse of power by the Upper Tribunal other than an application to that jurisdiction. In this respect, the 2007 Act makes a radical distinction between the powers and functions of the Upper Tribunal when operating under English law, and under Scots law; in the former case, the Tribunal may provide a remedy for such excess or abuse itself, while in the latter it can not. Even if immune from judicial review in England, it is not so immune in Scotland. There is no known authority for such a view.
DISTINCTIONS BETWEEN THE TRIBUNAL OPERATING UNDER ENGLISH AND SCOTS LAW
9. In Cart, the English High Court held that the Upper Tribunal was (unlike the Special Immigration Appeals Commission) to be regarded as an alter ego of the High Court, and thus outwith its supervisory jurisdiction, by considering its powers and composition. These are radically different in England and Scotland.
10. In English law, the Tribunal is given by sections 15 to 18 of the 2007 Act a judicial review jurisdiction which is potentially the same, albeit within defined boundaries, as was formerly exercised by the High Court. If the Tribunal is not subject to the supervisory jurisdiction of the High Court, at least it has such a jurisdiction itself17. There is no necessary lacuna in powers. While the availability of judicial review before the Tribunal depends on a decision by the Lord Chief Justice to issue a Direction to that effect, the question is thus in effect under the control of the Lord Chief Justice as head of the English judiciary. Whether that is, or is not, an acceptable solution, and whether it has the effect of excluding the supervisory jurisdiction of the English High Court, are questions for English law; but, to quote Cavafy, it is at least ‘some kind of a solution’18. Thus the conclusion of the English High Court in Cart as to the distinction between SIAC and the Upper Tribunal, that distinction being centrally the presence in the latter but not the former of a judicial review jurisdiction coupled with a view (paragraph 94) that the question necessarily fell to be determined identically when the Tribunal was acting under sections 11 and 12 of the 2007 Act and when it was exercising its judicial review jurisdiction (which is not necessarily so).
11. In Scots law, however, no such jurisdiction is given to the Tribunal under the 2007 Act. It was rightly pointed out in CSIB 261/2009, where an application for judicial review was presented to the Upper Tribunal in Scotland, “Shortly put, in Scotland it is not competent to make a direct application for judicial review to the Upper Tribunal. The statutory provisions in the Tribunals, Courts and Enforcement Act 2007 allow for a direct application for judicial review to the Upper Tribunal in appropriate cases arising under the laws of England and Wales and Northern Ireland. I refer in that connection to s.15 and s.16 of the Tribunals, Courts and Enforcement Act 2007. However, in Scotland applications for judicial review require to be made directly to the Court of Session.” And, self-evidently, the Tribunal cannot exercise the nobile officium of the Court of Session.
12. Assume for example a challenge to an unappealable decision of the Upper Tribunal on the ground of apparent bias on the part of the judge; cf. Davidson v Scottish Ministers (No. 2) 2005 SC (HL)7; Helow v Advocate General, 2009 SC (HL) 1. On the respondent’s argument, presumably no such challenge could be made in a Scottish case, although it could if the issue arose in a case in the Court of Session.
13. Accordingly, the logic of the argument that no application for judicial review of a decision of the Upper Tribunal can be presented to the Court of Session because the Tribunal is not subject to its supervisory jurisdiction must be that such decisions, uniquely, cannot be subject to the review of any court or tribunal whatsoever. This is to erect the Tribunal to a status not equal to, but higher than, the supreme court; for even the Court of Session is subject to the supervisory jurisdiction of the Court of Session19. Thus there would be an inevitable lacuna, confined however to Scottish cases before the Tribunal. If a Scottish decision of the Upper Tribunal was reached without jurisdiction and was, as in the present case, not appealable, it could not on the respondents argument be challenged in any court, even though, presumably, a decision in a Scottish case transferred to the Tribunal under section 20 (which would not necessarily be heard by a Court of Session judge) could be20. That cannot be right.
14. As Lord Donaldson21 made clear in the course of debate on the Anti-Terrorism, Crime and Security Bill, the giving to a body classed as a superior court of record of a judicial review jurisdiction, albeit limited to its own sphere, is a necessary ‘building block’ of any scheme by which a body such as the Upper Tribunal is put beyond the supervisory jurisdiction of the ordinary courts, and the Attorney General agreed: see passages quoted at paragraphs 19 to 28 of the Supplementary Argument for the Secretary of State. As is there stated, it was ‘Parliament’s primary concern… that there should be proper routes of judicial scrutiny of government decisions’; in that case, as in the case of the Upper Tribunal in England, that may or may not be done by giving the body in question an original22 power of judicial review; but the argument for the respondents in Scotland must now be that it may be done without giving it any such power; and without providing that, when exercising the judicial review function, that be done by a judge of the Court of Session.
15. The scheme of the 2007 Act in Scotland is that applications for judicial review can only be made to the Court of Session. The Court then has, it is accepted, a discretionary power to transfer them to the Upper Tribunal in terms of section 20 of the 2007 Act23; albeit there are difficulties in doing so until proper arrangements are made for the provision of legal aid in the Upper Tribunal in Scotland, the power is there and it can be assumed that it will be exercised judicially. That is utterly distinct from the scheme of the Act in cases arising under English law, where an application such as the present case could only be made to the Upper Tribunal; section 18 as read with the Direction. The Upper Tribunal, further, has a duty and thus a power to transfer English judicial review applications to the High Court if not properly made to it: section 18 (3): but there is no power in the Tribunal to transfer Scottish applications, such as that in CSIB 261/2009, to the Court of Session in any circumstances whatsoever24.
16. Again, albeit there is a distinction between the English and Scottish legal systems as to whether judicial review applications are to be determined by the Tribunal or the Court, in each case the structure of the system is that a claimant has the right to apply to one or the other and, if it is held that the decision should be made elsewhere, it will be transferred there. In Scots law, the decision as to where the substantive decision should be made is inevitably made by the Court of Session; in English law, it may be made by either the High Court or the Upper Tribunal. In each system, there seems to be a reasonably clear structure. The structure is however fundamentally different. If, however, the Upper Tribunal is to be regarded as the ‘alter ego’ of the Court of Session, it is not clear why that should be so; why Scottish judicial reviews should be incapable of presentation to the Tribunal.
17. There are further substantial differences between the character of the Upper Tribunal, considered as a court or tribunal acting under English law, and its character considered as a court or tribunal acting under Scots law. In substance25, it is a court in Westminster Hall within the meaning of Article XIX of the Union with England Act 1707. Its relationship with the English High Court, points f and g below in particular, demonstrates the extent to which the Upper Tribunal may be an alter ego of the English High Court but not of the Court of Session.
- Its base is London, although it does also sit elsewhere.
- Its membership is predominantly composed of English lawyers, unqualified in Scots law26. Only two of its twenty-one salaried judges are Scottish lawyers27 The Tribunal further includes ex officio all English district and county court judges as well as all full time sheriffs28 and many part-time judges of whom only a small minority are Scots lawyers.
- While it is a matter for English law whether its English membership might be regarded as having equivalent status to High Court judges, it is evident that its Scots membership does not, on the whole, have a status equivalent to judges of the Court of Session. Nor are they paid as such.
- The Tribunal Procedure Committee includes only one Scots lawyer in a membership of twelve.
- Its procedure rules are English28.
- When the 2007 Act was debated in Parliament, undertakings were sought and obtained, enshrined now in section 18 of the Act which does not apply to Scottish cases, that English judicial reviews would be heard by English High Court judges or judges of equivalent status29. There has been no undertaking at all as to the conduct of Scottish judicial reviews, even that they will be determined by Scottish lawyers; the 2007 Act is silent on this. The President of the Tribunal has suggested30 that Scottish judicial reviews (i.e. those remitted to the Tribunal under section 21) will normally be heard by English judges; and urgent business (English, Irish, or Scottish) is heard by the Duty Judge of the Queens Bench Division of the English High Court31
- The Upper Tribunal is led by an English judge, because this is what has been agreed between the Senior President of the Tribunal and the President of the Queens Bench Division of the English High Court32.
- Particular stress was laid by the Court in Cart (see paragraph 89) on the position of the Senior President of the Tribunal and the conditions of his appointment. The selection panel is by statute controlled by the Lord Chief Justice as head of the English justiciary33. The Lord Chief Justice may agree with the Lord Chancellor that the position not be filled34.
- The Minister responsible for the passage of the 2007 Act gave Parliament an undertaking that legal aid would be made available for judicial review cases before the Tribunal under English law, and that undertaking has been honoured35 but no such undertaking was given36 for cases under Scots law, and legal aid has not yet been made available for such cases.
18. If the Court of Session retains its supervisory jurisdiction, and if petitions for judicial review may generally be transferred to the Upper Tribunal if and only if a Court of Session judge considers this appropriate37 these may not be fundamental flaws. It is, on this analysis, explicable why Parliament should neither have considered such differences nor sought equivalent undertakings for Scottish cases. On the respondents analysis it is not explicable.
19. The proper analysis is that the Upper Tribunal is in no different position to any other inferior court or tribunal within the jurisdiction of the Court of Session. Its status is that of the Social Security Commissioners, of the Asylum and Immigration Tribunal, and the other tribunals it consolidates, none of which could have been argued to be a supreme court or the ‘alter ego’ of the Court of Session.
20. It is for the respondent to show that in some way this Tribunal escapes the jurisdiction of the Court of Session. It may accordingly be necessary to submit further argument in answer to the respondent’s Note of Argument. For present purposes the short answer however is that there is nothing in the constitution, structure, or powers of the Upper Tribunal which would have this extraordinary effect.
Jonathan Mitchell QC
7 December 2009
- See also Stirling v Holm, 1873 11 M 480 at 488 [back]
- The AIT is one of a number of other tribunals to be merged into the new tribunal in 2010. [back] [back]
- See below. [back]
- See generally Clyde and Edwards, Judicial Review, 8.03. [back]
- On the respondent’s approach as foreshadowed in his argument in Cart, it would not in so doing be acting so as to affect the constitution, which is a reserved matter, but would be acting so as to affect jurisdiction, which is not: Scotland Act 1998 Schedule 5 paragraph 1 contrasted with section 126(4). See Davidson v Scottish Ministers 2006 SC (HL) 41, paragraph 43. [back]
- See Parliamentary debate of 31 January 2007, and 1st Report of 2007 of the lead committee, Justice 2 . [back]
- Memorandum by the Lord President of the Court of Session and the Senators of the College of Justice, given in evidence to the House of Lords Select Committee on the Constitutional Reform Bill in 2004, paragraph 24. [back]
- Skeleton Argument, paragraph 52. [back]
- E.g. Zafar, 2001 SCLR 474 and Mackenzie, 1999 SCLR 1085. [back]
- It is believed that this decision is under appeal. [back]
- The petitioner does however adopt what was said by the English High Court as to this argument in Cart. She also adopts quantum valeant the arguments submitted for the Public Law Project and for the claimants in that case as to English law since the Norman Conquest, and their conclusion that the respondent’s case is ill-made. These illustrate some of the constitutional principles underlying the right to apply to the supervisory jurisdiction of the Court, albeit those principles have been translated into law in a rather different manner. [back]
- And see paragraph 5 of the Memorandum by the Lord President of the Court of Session and the Senators of the College of Justice referred to above. [back]
- Section 4 (5) of the Act. Compare with Smith v Scott, 2007 SC 345 at paragraphs 29 to 37. [back]
- Paragraphs 42 and 94. As described below, the factors which go to that description in England are not present in Scotland. [back]
- Stirling v Holm 1873 11 M 480; Moss’ Empires v Assessor for Glasgow 1916 SC 366 and 1917 SC (HL) 1. [back]
- Smith v Scott, 2007 SC 345. [back]
- The Direction covers inter alia reviews of decisions of the First Tier Tribunal where there is no right of appeal. See the Tribunal’s helpful explanation at http://www.administrativeappeals.tribunals.gov.uk/Documents/JudicialReview_final.pdf . [back]
- ‘Περιμένοντας τους Bαρβάρους’, 1904. [back]
- This was established as early as the second year of the Court: Innes v Dumbar, 1534 M. 7320. For a modern example, see Helow v Advocate General, 2007 SC 303 (first paragraph). [back]
- Because this would be in origin a Court of Session process. Quaere however whether the respondents would argue that it could only be challenged if the alleged abuse or excess was before the transfer, or whether they would accept that this could not matter. [back]
- Referred to by the Secretary of State (see his Supplementary Argument, paragraph 21) in Cart as the ‘principal author and progenitor’ of the proposal that the Special Immigration Appeals Commission be put beyond the supervisory jurisdiction of the English courts by giving it the status of a ‘superior court of record’. [back]
- As opposed to delegated, on a transfer from the Court of Session or High Court. [back]
- In principle; this is not a concession on the facts of this case. See Currie, 2009 CSOH 14 . [back]
- The Tribunal appears to believe that it could transfer them to the English High Court, http://www.osscsc.gov.uk/AboutUs/CasesWeHandle/judicialReviewUT.htm, but this is incorrect. [back]
- Substance, not form, is the test of status of a court in this issue: Hinds v The Queen, 1977 AC 195 at 214; Minister of the Interior v Harris 1952 (4) SA 769. [back]
- Requirements for membership of the Upper Tribunal are explained by the Judicial Appointments Commission in its Information Pack for prospective Deputy Judges. [back]
- http://www.administrativeappeals.tribunals.gov.uk/Documents/ListofJudges_oct09.pdf. [back]
- 2007 Act, section 6. [back] [back]
- http://bit.ly/4Ati51 . [back]
- Paragraphs 12 and 13 of Annex 3 of the Second Implementation Review. This is restated on the Tribunal website. In practice, judicial review cases in the Upper Tribunal will be heard either by the Senior President or a High Court Judge, perhaps sitting with one or more Judges of the Upper Tribunal.” [back]
- http://www.administrativeappeals.tribunals.gov.uk/Documents/ListofJudges_oct09.pdf [back]
- Paragraph 17 of the Second Implementation Review. [back]
- Constitutional Reform Act 2005, sections 75A to 75C (Schedule 1 of the 2007 Act). [back]
- 2007 Act, schedule 1 paragraph 1. [back]
- http://bit.ly/7RB052 . [back]
- Standing the inevitable difficulty and complexity of such applications, a transfer of a legally-aided case is unlikely to be compatible with Article 6 of the European Convention on Human Rights. Cf. Connelly v RTZ, 1998 1 AC 854. [back]
- 2007 Act, section 20, and Practice Note no.3 of 2008. [back]
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