THE Tribunals, Courts and Enforcement Act 2007 (TCEA) created a new two-tier system of tribunal justice, designed to be authoritative, efficient and self-contained. The extent to which the 2007 Act has succeeded in its aims, however, is now questionable, following the Supreme Court's decisions in R. (Cart) v. Upper Tribunal; R. (MR (Pakistan)) v. Upper Tribunal [2011] UKSC 28 and Eba v. Advocate General for Scotland [2011] UKSC 29. This note will focus on the English decision, with which the Scottish case is in broad agreement.
In various cases considered by the court, the claimants had failed in appeals made to the First-tier Tribunal (FTT). Acting under s.11(4)(b) of the 2007 Act, the new, single Upper Tribunal (UT) refused to hear appeals from the FTT. The UT's s.11(4)(b) decisions could not be appealed to the Court of Appeal (or Court of Session) because such decisions are expressly “excluded” from appeal (s.13(8)(c)). The claimants therefore turned to judicial review as an alternative avenue for redress.
The key question in the case was the extent to which judicial review is available for unappealable decisions of the UT. Acknowledging that “the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law” (at [37]), Lady Hale, giving the main judgment, held that the scope of judicial review was not static, and need not “be available on the full panoply of grounds which had been developed” since Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147 (at [33]). Tribunals and the courts were not “infallible”, and although the scope of judicial review should be set in a way that was “necessary and proportionate to keep such mistakes to a minimum”, the availability of review would be constrained by “the bounds of practical possibility” (at [37]). In other words, it was appropriate to accept some degree of legal error in the system if this would ensure that the system was final and worked efficiently, and that the authority of the UT was preserved.
Three potential approaches to the scope of review were then considered by Lady Hale. The first was the “exceptional circumstances” approach. Following R. (Sivasubramaniam) v. Wandsworth County Court [2003] 1 W.L.R. 475, the lower courts in Cart had held that judicial review of s.11(4)(b) decisions should be restricted to instances of pre-Anisminic jurisdictional error, i.e. a failure to comprehend the ‘four corners’ of a power, and to serious breaches of the rules of procedural fairness. This approach was rejected by Lady Hale for a number of reasons (at [40]). Amongst other things, she said that the adoption of such limited review would run counter to the absence of any “clear and explicit recognition that the Upper Tribunal is to be permitted to make mistakes of law” in the 2007 Act.
Lady Hale also rejected the adoption of full-blown post-Anisminic review, saying that the protection this would offer to the rule of law would be disproportionate to the potential cost of adopting such an approach in the new system. This was especially so in light of the efficiency and finality that the new system was vested with (see [47] – [51]).
Instead, a middle way was found (at [52]–[56]). Following the approach of Dyson L.J. in R. (Wiles) v. Social Security Commissioner [2010] EWCA Civ. 258, Lady Hale held that the scope of judicial review should be determined by the criteria used to determine the availability of second-tier appeals in the ordinary courts, as found in the Access to Justice Act 1999, s.55. Review would be allowed if it would raise important points of principle or practice, or if there was some other compelling reason. Indeed, it was pointed out that these very criteria had been earmarked by Parliament to govern the availability of appeals from the UT to the ordinary courts (s.13(6)). This approach, it was said, would ensure that important points could always be settled by a higher court, whilst accepting the relative autonomy of the post-TCEA tribunals structure, and the fact that a system wholly devoid of legal error was unrealistic. Applying these criteria, the appeals were dismissed (at [59]).
Whilst it is agreed that full post-Anisminic review would be undesirable, the solution reached by the Supreme Court is, surely, less than satisfactory. The TCEA demonstrates a clear Parliamentary intention that appeal on a point of law, within the channels set by the 2007 Act, was meant to replace judicial review as a means of addressing legal errors in the system. Furthermore, it is clear that the UT was intended to have final say on whether appeals on points of law from the FTT should be allowed. Yet as Lord Dyson recognised, ‘there is little if any substantive difference between an appeal on a point of law and judicial review’ (at [133]). By allowing for the availability of judicial review, the Supreme Court has therefore provided an effective appeal for unappealable decisions, substituting the opinion of the UT as to whether an appeal from the FTT should be allowed for that of the ordinary courts. The fact that the criteria the Supreme Court employed, for the purposes of delineating the availability of review, were the very criteria that are to dictate the availability of an appeal supports this conclusion.
It is surely correct to say that the rule of law means that the UT should not be allowed completely to misconstrue the four corners of its power. Nor should it be allowed to commit gross breaches of procedural justice. But the Sivasubramaniam approach adequately meets these concerns, whilst ensuring that judicial review does not serve as an effective appeal, frustrating the avenues of redress delineated by the Act. Judicial review is not, like appeal, concerned with settling important points of principle or practice. Rather, its concern is with vires – that is, ensuring that decision-makers act within the four corners of their power – as well as questions of procedural fairness. This is the primary focus of the Sivasubramaniam model, and it would have been preferable as a result. Such an approach would have maintained the orthodox constitutional basis for review, avoided flouting Parliament's express will, and ensured proportionate protection of the rule of law.
