Background

The Tribunals, Courts and Enforcement Act 2007 (the 2007 Act) was a landmark in the administration of justice through tribunals in the United Kingdom.

The 2007 Act established a unified tribunal structure, encompassing tribunals which between them deal with a diverse range of claims - from special educational needs to immigration and asylum, and from tax issues to gambling appeals.

Each of the tribunals involved operated under a two tier structure, with claims first being made to the First Tier Tribunal, but with the possibility of an appeal to the Upper Tribunal. An appeal to the Upper Tribunal could be made on a point of law (unless it fell within a defined class of excluded decision), but no appeal was possible without permission. Permission had to be given either by the First Tier Tribunal or by the Upper Tribunal itself. If permission to appeal was refused by both Tribunals, the 2007 Act did not provide a route for further recourse through the legal system.

This was the situation in which the claimants found themselves in Cart v The Upper Tribunal. The claimants brought judicial review claims to challenge the decisions of the Upper Tribunal refusing permission to appeal. They argued that the High Court had, through judicial review, a supervisory jurisdiction to correct errors of law made by the Upper Tribunal.

Initially in Cart, the Government had argued that decisions of the Upper Tribunal were not susceptible to judicial review. While this was strongly rejected by the Divisional Court, the court (and subsequently the Court of Appeal) held that judicial review would only be available in exceptional circumstances and the claimant's case was not sufficiently exceptional.

The claimant appealed to the Supreme Court and was joined by another claimant who was in similar proceedings.

The decision

Giving the leading judgment, Lady Hale set out three points on which the court was clear from the outset:

  • The 2007 Act did not expressly exclude the judicial review of decisions of the Upper Tribunal and the most clear and explicit language would have been required to exclude it. Judicial review must be possible in certain circumstances.
  • Whatever conclusion the Supreme Court came to would apply to the whole tribunal structure covered by the 2007 Act. To hold otherwise would be inconsistent with the unified tribunal structure.
  • The scope of judicial review is a matter of the common law and therefore for the courts. It operates to ensure that, as far as possible, decisions are made in accordance with the law. But no system is infallible. The question to be answered by the Supreme Court was: what machinery is necessary and proportionate to keep mistakes in the system of justice to a minimum? To put it another way: what level of scrutiny outside of the tribunal structure is required by the rule of law?

In answering these questions, in relation to refusals of permission to appeal by the Upper Tribunal, the Supreme Court held there were three alternative courses open to it following argument. These were:

  1. Unrestricted judicial review: Judicial review would be available on all the usual grounds to challenge an error of law. This was the position in a number of tribunal cases prior to the 2007 Act.
  2. Judicial review in "exceptional circumstances": Judicial review would only be available in exceptional circumstances; where the Upper Tribunal had acted in excess of its jurisdiction or there was a procedural irregularity which constituted a denial of fundamental justice. This was the approach taken by the Divisional Court and the Court of Appeal in Cart.
  3. Judicial review using the second tier appeals criteria: Judicial review would be available on the grounds on which permission to appeal to the Court of Appeal would be granted from a ruling of the Upper Tribunal. These were that the appeal must raise some important point of principle or practice, or there must be some other compelling reason for the appeal to be heard. The criteria are the same as those applied to appeals from the High Court to the Court of Appeal, where the decision of the High Court was itself made on appeal. This would be a middle ground between unrestricted judicial review and judicial review in "exceptional circumstances".

The Supreme Court held that allowing unrestricted judicial review of refusals was not intended by Parliament when it enacted the 2007 Act. In some of the tribunals, such as asylum and immigration, claimants are fully incentivised to make every possible application for an appeal. In unrestricted judicial review, it is not difficult to challenge a decision as having been made in error of law.

Therefore if unrestricted judicial review were available to claimants, a disproportionate amount of judicial resources would be taken up by such claims. The floodgates would be opened. This would be against the reorganisation of the tribunal system as achieved by the 2007 Act.

Neither was judicial review only in exceptional circumstances the correct approach. The Supreme Court held that such an approach would lead to a real risk that serious errors of law, affecting large numbers of people, would go uncorrected.

Judicial review of only jurisdictional errors was objectionable for a number of reasons. First, the distinction between jurisdictional error and non-jurisdictional error is an old fashioned distinction, which was effectively abandoned after Anisminic Limited v Foreign Compensation Commission (1968). This was in part because "jurisdiction" is an ambiguous term.

Second, in practice it is immaterial to a claimant whether an error of the Upper Tribunal is a jurisdictional error or any other error in law. Non-jurisdictional errors of law may be of great general significance or have drastic consequences.

This left the middle ground. The Supreme Court held that refusals of permission to appeal by the Upper Tribunal could only be judicially reviewed where the second tier appeals criteria were satisfied. This would be a rational and proportionate restriction on the availability of judicial review. In addition, the second tier appeals criteria reflected Parliament's intention as to when proceedings in the Tribunal Service should be "channelled into the legal system".

The claimants' cases did not satisfy the second tier appeals criteria and the appeals were dismissed.

The Supreme Court was concerned that, where judicial review was available in these circumstances, the judicial review procedure should be streamlined. However, the court acknowledged that this was a matter for the Civil Procedure Rules Committee.

Commentary

The Supreme Court judgment clearly aims to come to a proportionate and pragmatic conclusion. All of the judges were clear that, while allocating judicial resources was a matter for Parliament, it was for the courts to decide whether the statutory provisions for the administration of justice adequately protect the rule of law. It was also for the courts to supplement statutory provisions where necessary through the availability of judicial review.

What the rule of law required in this particular situation was for the Supreme Court to take several steps toward the role of the policy maker. The judgment achieves this admirably as, on the factors set out in the judgment, the court appeared to choose the least objectionable policy.

Interestingly, while all the judges ended up choosing the middle ground, they did not all start in the same place. For example, Lord Dyson appeared to be convinced only by argument that judicial review should be restricted at all, while Lord Phillips clearly started from the point that the tribunal system was wholly self-sufficient and needed to be persuaded that there should be judicial supervision of such Upper Tribunal decisions.

Under the second tier appeals criteria, claimants in the situation of those in Cart will not succeed in the great majority of cases. However, the adoption of the criteria allows cases of general importance, and cases with dire consequences, to be reviewed again by the High Court.

Adoption of the second tier appeals criteria does achieve clarity of the legal position. As stated in the judgment, judges have used the criteria successfully for many years. In our view, this is a significant improvement on the "exceptional circumstances" approach favoured by the Court of Appeal, and the distinction between jurisdictional and other errors should not form part of the test. Such a test would not be helpful to claimants and would not necessarily uphold the rule of law. In addition, the fact that the exceptional circumstances discussed in the judgment do not appear to be exhaustive would not have aided clarity.

The importance of the issue of judicial resources can be seen clearly by the Supreme Court not accepting that judicial discretion in individual cases would be the answer to any floodgates argument. This is even the case in entertaining applications for permission for judicial review.

It is at least possible that the Supreme Court would not have come to the same decision had the immigration and asylum tribunals not been included with all of the other tribunals under the 2007 Act. Historically, these tribunals led to vast numbers of claims for judicial review (many of them unsuccessful) and formed the basis of the floodgates arguments.

However, it is understandable that the Supreme Court has held the approach applies to the whole tribunal structure. Firstly, because to hold otherwise would appear to go against the grain of the 2007 Act. Secondly, because it would be unwise to afford less protection to claimants in the immigration and asylum tribunals, which engages fundamental human rights, than to claimants in other tribunals. If a change is to be made here, it is for Parliament to make it.

Adoption of the second tier appeals criteria does appear to come to the correct balance between protecting the rule of law and allocating judicial resources proportionately, as well as being broadly in line with the intention of the 2007 Act.