Duncan Lewis

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Supreme Court for the ‘Superior Court’?

Date: (19 January 2011)    |    

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Governments generally appear unable to resist tampering with the justice system. The introduction of a unified tribunal system through the Tribunals, Courts and Enforcement Act 2007 (TCEA) which, broadly speaking gathered together a large number of tribunals and appeal processes under one roof, and then formulated common rules to govern them, has at least the surface virtue of simplifying and codifying the law. The various tribunals were gathered together in six 'chambers' *1 of the First-tier Tribunal ('FTT') which have their own specific rules and judges at the first tier stage. The new system continues to add to its responsibilities; it has recently subsumed the former Asylum and Immigration Tribunal (now the Immigration and Asylum Chamber) and a Lands Chamber has taken over the functions of the former Lands Tribunal The FTT has an overarching appeal body – the Upper Tribunal ('UT'), which is also intended to have certain of the High Court's powers of judicial review. This Upper Tribunal was designated a 'superior court of record' and besides its own appointed judiciary has (in England and Wales) Lords Justices, High Court Justices, circuit judges and district judges as ex officio members. This new structure raised the question – to what extent does judicial review lie against the UT?

The Divisional Court, and now the Court of Appeal have considered this question in the case of Cart *2. Both have concluded that judicial review does not generally lie, and have restricted recourse to the High Court to cases where either the UT acts beyond its jurisdiction, by for example hearing a case it had no power to entertain, or there has been a gross and flagrant denial of justice. A 'denial of justice' in this sense does not mean a decision that is wrong in law, but rather an extreme example of disruption of the judicial process itself, such as for example a hearing conducted by a judge with a pecuniary interest in the outcome. It is clear that the Courts expect few, if any, challenges to be declared admissible, and that decisions of the UT will be the final word other than where there is an onward right of appeal to the Court of Appeal.

These issues are of immense constitutional importance. Not only do they deal with the future functioning of the new tribunal system, but they also consider whether and to what extent parliament can trammel the powers of the High Court. It may be recalled that the attempt to exclude judicial review from immigration tribunal cases caused an uproar in 2004 – on that occasion the government backed down. In relation to this latest attempt the Divisional Court and the Court of appeal were in agreement that (a) the mere designation of a body as a 'superior court of record' does not immunise it from judicial review and that (b) the clearest of words were required to oust the jurisdiction of the High Court.

Although the Court of Appeal and the Divisional Court agreed on these issues, they differed over the reasoning for their findings. Although, the Court of Appeal's decision is obviously is very important, it is unlikely to be the last word in this matter for very long.

Where next? 'Finality is a good thing, but justice is a better.' *3

Admittedly, it is hard to imagine an objection in principle to the suggestion that where the UT has heard a case that lay outside its jurisdiction the resultant proceedings could be quashed. As pointed out by Laws J, that is to give effect to the will of parliament. However, previous experience suggests that this is a very hard line to hold, and greybeards are surely happily dusting off copies of the pre-Anisminic *4 authorities on the distinction between errors within jurisdiction and those without.

Secondly, the Court of Appeal themselves accepted that their reasoning may not apply in the field of asylum law, where lives may be at stake. No one wants to see the death or torture of an asylum claimant as a result of a decision known to be wrong, even if that would entail a judicial review of the Upper Tribunal. On the other hand there is little doubt that one of the primary motivations for attempting to make the Upper Tribunal free from judicial review was an effort to reduce the admittedly heavy burden of immigration claims upon the High Court. It seems inevitable that these two competing pressures will require a judgment to strike the balance between them in the Supreme Court.

Further, the revised system of tribunals have been set up on a UK wide basis, and the same issues arose in Scotland in Eba [2010] CSOH 45. The Scottish courts have thus far decided the issues on a different basis from either the Divisional Court or the Court of Appeal (though reaching essentially the same conclusion), however the results of a final appeal to the Inner House of Session are not yet known. Nonetheless, it appears clear that if the Inner House now agrees with the Court of Appeal in Cart then under the Scottish system there would be a further appeal to the Supreme Court as of right, whereas if they disagreed with the Court of Appeal the Supreme Court would be virtually bound to step in to resolve the tension of differing interpretations of the role and ambit of the Upper Tribunal, north and south of the border.


*1. for example the Health, Education and Social Welfare Chamber now carries out functions previously met by thirteen pervious tribunals

*2. in the High Court The Queen on the Application of Cart (1st Claimant), U (2nd C) and XC (3rd C) v The Upper Tribunal (1st Defendant) and Special Immigration Appeals Commission (2nd D) and Secretary of State for Justice (1st Interested Party), The Secretary of State for the Home Department (2nd IP), The Public Law Project (3rd IP) and Child maintenance and Enforcement Commission (Interveners) [2009] EWHC 3052 and in the Court of Appeal The Queen on the Application of Cart (Appellant) v The Upper Tribunal (D) and Secretary of State for Justice (IP), Child maintenance and Enforcement Commission (2nd IP), Mrs Wendy Cart (3rd IP) and The Public Law Project (Interveners) [2010] EWCA Civ 859

*3. Ras Behari Lal v King-Emperor (1933) 60 IA 354, per Lord Atkin at 361, quoted at para 43 of the Court of Appeal judgment in Cart.

*4. [1969] 2 AC 147