affiliated to the International Association of Constitutional Law
The Tribunals, Courts and Enforcement Act 2007 fundamentally reshapes both the way in which tribunals relate to one another and the way in which they relate to courts. The disparate collection of tribunals that had grown up ad hoc as policymakers sought ways of supplying administrative justice has been largely replaced with a single new juridical structure consisting of the First-tier and Upper Tribunals. Those institutions are at once more court-like than their predecessors—in terms, for instance, of judicial independence—and yet more separate from courts than ever before: those dissatisfied with a decision of the First-tier Tribunal can appeal (with permission) to the Upper Tribunal, but onward appeals to the Court of Appeal are to be a rarity. The combined effect of section 13(6) of the Act and an administrative order made thereunder is that the normal second-tier appeals criteria apply: permission for onward appeals against substantive decisions of the Upper Tribunal to the Court of Appeal can be granted only if the appeal would raise “some important point of principle or practice” or in the face of “some other compelling reason”. And the powerfully-constituted Court of Appeal that recently decided PR (Sri Lanka) v Secretary of State for the Home Department has made it clear that those criteria are to be applied as restrictively as their language implies.
Yet the 2007 Act is silent about whether courts can scrutinize the Upper Tribunal’s decisions by way of judicial review, as distinct from appeal—an issue that assumes practical importance in relation to those categories of decisions against which no right of appeal to the Court of Appeal lies. The main category here consists of decisions by the Upper Tribunal to refuse permission to appeal to itself against decisions of the First-tier Tribunal. In the absence of a right of appeal against such decisions, can they be judicially reviewed? This was the question with which the Supreme Court was confronted in R (Cart) v Upper Tribunal; R (MR (Pakistan)) v Upper Tribunal and Eba v Advocate General for Scotland.
In these cases, two individuals whose cases had been refused permission to appeal by the Upper Tribunal had then sought judicial review of that refusal. Would judicial review be available in such cases? Or to ask the same question in somewhat wider terms: what type of legal control should tribunals be subject to? What does the rule of law mean in practice?
In we go back in time to the 1950s, we can find the traditional approach toward legal control of tribunals by the higher courts being articulated by the Franks report on Tribunals and Inquiries (Cmnd 218, 1957). The Franks Committee was “firmly of the opinion that all decisions of tribunals should be subject to review by the courts on points of law” (para. 107). At around the same time, Lord Denning had noted in Gilmore  1 QB 574, 586 that “if tribunals were to be at liberty to exceed their jurisdiction without any check by the Courts, the rule of law would be at an end.”
Of course, since the 1950s, there have been major structural and operational changes for tribunals and the courts – not least the establishment of the First-tier and Upper Tribunals. But there has also been a vast increase in the number of cases decided by tribunals, and in particular, the emergence of a high volume of immigration and asylum litigation in the higher courts – and many of those cases end up in the higher courts after they have been dealt with the immigration tribunal. This caseload has imposed a burden on the higher courts and also lengthened the overall decision-making process in immigration and asylum cases. It is well-known that, in particular, the Administrative Court has over recent years been overwhelmed by challenges arising from the asylum and immigration context and, given the limited resources of the court, the handling of these challenges has generated delays elsewhere in the court’s caseload. Such delays have in turn generated concerns about public confidence in the administration of justice: “justice delayed is justice denied”.
Given this background, the Supreme Court in Cart had to decide what was the appropriate role for judicial review in the new tribunals system: which of the following three paths would the Supreme Court take? First, the court could have accepted that judicial review had been excluded altogether. Secondly, it could have insisted that “full” judicial review remained available, unaffected and unmodified by the new tribunals structure. Or the court could have beaten-out a middle-path in which judicial review remained a possibility, but only for a limited category of case. Which option did the Supreme Court prefer?
As the regards the first option – exclusion of judicial review – the government had argued in Cart that the statutory designation of the Upper Tribunal as a “superior court of record” rendered it immune from judicial review. However, this contention was, as Lady Hale put it, “comprehensively demolished” by Laws LJ in the Divisional Court. Judicial review could be excluded (if at all, which Laws LJ doubted) only by the use of explicit language—a criterion not met by merely designating the Upper Tribunal a “superior court of record”. Sir Andrew Leggatt, in his review of tribunals that prefigured the 2007 Act, had assumed otherwise. The status, expertise and independence of what was to become the Upper Tribunal was such as to render judicial review of it inappropriate. It would therefore be necessary, said Leggatt, for the appellate-level tribunal either to be designated a “superior court of record” or for judicial review of it to be explicitly ousted. (Leggatt preferred the latter option for presently irrelevant reasons.)
However, just because the Upper Tribunal was not immune from judicial review does not mean that it is, or should be, subject to the full rigours of the supervisory jurisdiction. The constitutional case for full-scale review of administrative bodies consists, in large part, in the need for independent courts to have ultimate responsibility for seeing that executive decisions are taken in accordance with law. The case for judicial review of judicially independent, expert tribunals is clearly weaker—or at least different. For the Divisional Court and the Court of Appeal in Cart—but not for the Court of Session in Eba—the nature of the new tribunals system was such as to render necessary and appropriate only a very limited form of court-supervision. Judicial review would lie only in the face of a pre-Anisminic outright excess of jurisdiction or a fundamental denial of procedural justice.
The Supreme Court, however, disagreed. Its unanimous view was that the Administrative Court should be prepared to review decisions of the Upper Tribunal if—but only if—the case raises some important point of principle or practice or if there is some other compelling reason for judicial review. Thus the Supreme Court has aligned precisely the criteria that limit judicial review of the Upper Tribunal with those that condition the exercise of rights of appeal (where they exist). To put the point succinctly, the Supreme Court went for the middle-path: judicial review of the Upper Tribunal would be available but only on the basis of the second-tier appeals criteria.
In doctrinal terms, it is hard to know what to make of the Supreme Court’s decisions in Cart and Eba. Sedley LJ, in the Court of Appeal, at least nailed his colours to the mast: the Upper Tribunal was to be regarded as having an unusually broad jurisdiction, such that post-Anisminic errors of law were to be considered intra-jurisdictional. In contrast, Lady Hale and Lord Dyson—who, in the Supreme Court, addressed this point most directly—were highly resistant to the idea of reintroducing (as the Court of Appeal’s approach would have) the problematic distinction between jurisdictional and non-jurisdictional errors of law. Meanwhile, in Eba, Lord Hope laid to rest the notion—sustained by Lord President Emslie’s judgment in Watt v Lord Advocate—that the distinction persisted in Scots administrative law. Yet while the Supreme Court’s refusal to reintroduce the distinction between jurisdictional and non-jurisdictional errors of law makes its approach more doctrinally orthodox than the Court of Appeal’s (at least if we treat the mantra that all errors of law are jurisdictional as the modern orthodoxy), the Supreme Court’s analysis is also largely doctrinally empty. Indeed, the principal hallmark of its judgments in Cart and Eba is a highly pragmatic approach, whereby the contours of judicial review are shaped by practical concerns pertaining to “proportionate dispute resolution” and the efficient deployment of scarce judicial resources. The upshot, then, is that doctrinal tools such as jurisdiction—which promise but often fail to deliver a priori guidance as to the reach of judicial review—are eschewed in favour of ex post considerations pertaining (for instance) to the importance of the issues raised by the case.
What then were the real deciding factors in Cart? Three can be identified: (i) the type of interests being served by onward challenges; (ii) limited judicial resources; and (iii) tribunal expertise.
As regards the first factor – the type of interests being served by onward challenges – it is important to appreciate that onward challenges can serve a number of different purposes – private and/or public. The private purpose of such challenges is that of correcting those legal errors in the decision which result in an injustice to the individual claimant. By contrast, onward challenges also serve wider public purposes: to ensure public confidence in the administration of justice; to clarify and develop the law, practice and procedure; and to maintain the standards of first-instance courts and tribunals. Given that the position post-Cart is that only those challenges that fulfil the second-tier appeals criteria will now be considered, legal errors that only affect the specific individual case will not qualify. The second-tier appeals approach expressly contemplates that some decisions, even though they contain an error of law, will not be capable of being challenged because they raise no important point of principle or practice or other compelling reason. The Supreme Court did not consider that such challenges were sufficiently important to attract any judicial review.
This distinction between the different type of interests served by onward challenges gives us some appreciation of what is happening in Cart and how the second-tier appeals criteria are to be applied in practice. But, at another level, it just begs the question: why is judicial review to be rationed in this way? Why are those challenges serving broader public purposes to be preferred over those serving private interest exclusive to the individual claimant?
The answer is clear: the Supreme Court recognized the need for proportionate dispute resolution, that is, the need to ensure that limited judicial resources are allocated appropriately and efficiently. The following quotations (from Cart) give a flavour of the views of the Supreme Court. According to Lady Hale, “[t]here must be a limit to the resources which the legal system can devote to the task of trying to get the decision right in any individual case.” Lord Phillips commented that “in exercising the power of judicial review, the judges must pay due regard to the fact that, even where the due administration of justice is at stake, resources are limited.” Likewise, Lord Brown noted that “the rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”
While no decision-making system is perfect or infallible, a certain level of error must be tolerated, according to the Supreme Court, because the costs of trying to correct every error would be disproportionate given limited available judicial resources. There is a clear value-judgement here by the Supreme Court: merely pointing to a litigant’s private interest in the correction of error is insufficient to justify judicial review of the Upper Tribunal’s refusal of permission to appeal; this is where the road ends.
The third consideration is the expertise of the Upper Tribunal. The Supreme Court Justices’ opinions are replete with comments to the effect that the Upper Tribunal is to be recognized as a specialist and expert tribunal. Cart is a clear endorsement that the higher courts have considerable confidence in the Upper Tribunal. The different chambers of the Upper Tribunal administer highly complex areas of law – social security, immigration, and so on – and therefore attain a particular expertise. Consequently, the courts should adopt an appropriate posture of judicial restraint.
It was on this basis that Lord Phillips’ “initial inclination was to treat the new two tier tribunal system as wholly self-sufficient”, but he had been subsequently persuaded that there was, “at least until we have experience of how the new tribunal system is working in practice, the need for some overall judicial supervision of the decisions of the Upper Tribunal, particularly in relation to refusals of permission to appeal to it, in order to guard against the risk that errors of law of real significance slip through the system.” In other words, there is always the possibility that the Supreme Court may at some stage revisit Cart.
The notion of tribunal expertise is though far less clear-cut than it is sometimes assumed to be. It may not always be the case that tribunals possess the relevant expertise – that will depend upon many other factors such as: tribunal appointments; training; appropriate allocation and deployment of tribunal personnel; and the caseload pressures on the tribunals. Then there is also the future of legal aid funding and – in the absence of such funding – the willingness of Upper Tribunal judges to adopt a more inquisitorial approach when considering applications for permission to appeal to search for an important point of law that an unrepresented appellant might have been unable to draw out.
The positive aspect of Cart is that the second-tier appeals criteria should ensure that important points of principle or practice do not become fossilised within the Upper Tribunal. At the same time, the limitation upon judicial review is a broader reflection of the fact that in managing a large-scale administrative justice system, the notion of proportionate dispute resolution will sometimes mean that the cost of a case will outweigh its value.
Mark Elliott is a Fellow of St. Catharine’s College and a Senior Lecturer in Law at Cambridge University.
Robert Thomas is Professor of Public Law at the University of Manchester.