Mon, 28 Mar 2011
Manjit Gill QC: Supreme Court considers judicial review of the unified Tribunal system
The Supreme Court has this month heard one of the most important cases in the history of judicial review. In 3 linked appeals, before a 7 judge panel has heard argument over 4 days on the extent to which judicial review is available under the new unified Tribunal system under Tribunals, Courts and Enforcement A 2007. The outcome is likely to affect all practitioners who come into contact with any aspect of the Tribunal system.
The TCEA 2007 is a national statute which has brought under one umbrella about 60 disparate tribunals as diverse as the Lands Tribunal, tax tribunals, Care Standards Tribunal, Information Tribunal, Gambling Appeals Tribunal, social security tribunals, Financial Services and Markets Tribunal, Pension Appeals Tribunal, the Asylum and Immigration Tribunal, Mental Health Review Tribunals for England, Family Health Services Appeals Authority, Special Educational Needs and Disability Tribunal, etc to name but a few.
The system has two tiers. The First tier Tribunal consists of 6 chambers in which these tribunals are grouped. There is an onward appeal with permission on points of law to the Upper Tribunal which consists of 4 chambers. An appeal to the Court of Appeal lies only with permission and only on ‘second appeals criteria’, i.e. important points of principle or practice or some other compelling reason. The decisions of the UT are intended to be final. The Act describes the UT as a superior court of record. The Act also sets out a system of excluded decisions which cannot be the subject of an appeal. These include refusals by the UT of permission to appeal from the FTT to the UT.
The question arises: Is judicial review available of the new unified Tribunal, in particular of excluded decisions?
The matter is of obvious constitutional importance to users of the tribunals within the structure. Many users were previously able to appeal to the Court of Appeal on grounds of error of law (and not merely on second appeals criteria) and also able to seek judicial review subject to exhausting an alternative remedy such as an appeal.
However, in Cart, a child maintenance case, the Divisional Court (Laws LJ, Owen J) held that, although judicial review is not altogether excluded by designating the UT a superior court of record, the UT is in effect the alter ego of the High Court, and so judicial review of UT decisions is only available in two extreme circumstances: pre-Anisminic error of law where a Tribunal has acted outside its jurisdiction or where there has been a wholesale or fundamental collapse of fair procedure. Anisminic is of course the most important decision in modern judicial review, In that decision, the House of Lords in 1969 freed judicial review from its previous shackled thinking under which only errors outside of jurisdiction were considered reviewable. The two categories of judicial review which the Divisional Court held are still available are likely to arise only extremely rarely in practice. The judgment means, in crude terms, that all of the post 1969 jurisprudence on development of error of law is unavailable, including, for example, arguments as to ‘ordinary’ unfairness (see for instance R v. Criminal Injuries Compensation Board ex p A  2 AC 330 and R v Secretary of State ex p Alconbury  2 AC 295) and arguments as to error of law arising from errors of fact (see the ground-breaking decision in E and R v Secretary of State  QB 1044). This takes judicial review back to the esoteric distinctions on errors of law on the face of the record and the like, which did so much to confuse our concepts of judicial review before 1969.
Nevertheless, the Court of Appeal (Sedley, Richards LJJ and Sir Scott Baker)  2 WLR 36 came to a similar decision. Sedley LJ followed Lord Phillips’ decision in R (Sivasubramaniam) v Wandsworth County Court  1 WLR 475, a failed attempt to seek judicial review of certain county court decisions. He said:
“....the new tribunal structure, while not an analogue of the High Court, is something greater than the sum of its parts. It represents a newly coherent and comprehensive edifice designed, among other things, to complete the long process of divorcing administrative justice from departmental policy, to ensure the application across the board of proper standards of adjudication, and to provide for the correction of legal error within rather than outside the system, with recourse on second-appeal criteria to the higher appellate courts. The account of the system given by its first Senior President, Carnwath LJ, 'Tribunal justice – a new start'  PL 48 bears out not only these characteristics but its potential to develop a legal culture which is not in all respects one of lawyers' law – a system, in other words, of administrative law. While it could no doubt cope with any of the models of judicial review which we have described, the one which seems to us to implement Parliament's intent in enacting the Leggatt reforms is one which secures the boundaries of the system but does not invade it. This is the Sivasubramaniam model.”
According to the Court of Appeal, as judicial review is an artefact of the common law, the courts can cut down its scope as well as extend it.
Soon thereafter, in the Scottish case of Eba  CSIH 78, disability living allowance case, the Inner House of the Court of Session ruled that judicial review continues to be available at least in Scotland, and the Cart limitations do not apply north of the border.
Both appeals went to the Supreme Court with the Claimant appealing in Cart and the Government appealing in Eba. To this was added a case involving the Immigration and Asylum Chamber, MR (Pakistan), in which Sullivan LJ, sitting in the Administrative Court followed Cart, dismissed the judicial review claim and sent it on a leapfrog appeal straight to the Supreme Court, see  EWHC 3558 (Admin).
The bulk of judicial reviews are of course connected with immigration and asylum and related human rights issues. As the IAC sits in all parts of the United Kingdom as its jurisdiction is of course national. This raises the sort of jurisdictional and forum-shopping issues which arose in Tehrani. The arguments in this case however are not restricted to any one chamber. They concern the whole of the Tribunal system.
The judgment of the Supreme Court is awaited and is likely to be out in 2 or 3 months. In the meantime, on the Court of Appeal’s decision, it is not easy to assess what types of decisions can or cannot be ‘fully’ judicially reviewed or only reviewed to the narrow extent stipulated by the Court of Appeal. Practitioners should therefore take such protective steps as are necessary to preserve their positions.
Manjit S Gill QC appeared for the Appellant in MR (Pakistan).