JUDICIAL REVIEW — Court’s jurisdiction — Upper Tribunal — Whether refusal of permission to appeal to itself susceptible to judicial review — Whether Scotland should follow approach in England and Wales — Tribunals, Courts and Enforcement Act 2007, s 3(5)
The approach to judicial review of unappealable decisions of the Upper Tribunal in Scotland should be to align itself with what had been decided by the Supreme Court to be the approach to be taken in England and Wales. Accordingly, as in England and Wales, the same criteria which had to be satisfied when making a second-tier appeal to the Court of Appeal applied when deciding whether a refusal of permission by the Upper Tribunal to appeal to itself was open to judicial review in Scotland.
The Supreme Court so held, dismissing the appeal of the Advocate General for Scotland, from a decision of the First Division of the Court of Session (the Lord President (Hamilton), Lord Kingarth and Lord Brodie) 2010 SLT 1047 on 10 September 2010, allowing a reclaiming motion by the claimant, Blajosse Charlotte Eba, against the interlocutor of the Lord Ordinary, Lord Glennie 2010 SLT 549 on 31 March 2010, who dismissed the claimant’s petition for judicial review of a decision of the Upper Tribunal on 6 February 2009 refusing her permission to appeal from the First-tier Social Entitlement Chamber’s refusal of her appeal against a refusal by the Department of Work and Pensions of her claim to disability allowance. The First Division of the Court of Session held that the refusal by the Upper Tribunal was amenable to judicial review.
LORD HOPE OF CRAIGHEAD DPSC, delivering the judgment of the court, said that wherever there was an excess or abuse of power or jurisdiction which had been conferred on a decision-maker, the Court of Session had power to correct it: see West v Secretary of State for Scotland 1992 SC 385, 395. On the other hand there was obvious merit in achieving finality at the tribunal level in the delivery of administrative justice. The new structure introduced by the Tribunals, Courts and Enforcement Act 2007 lent force to that argument. There were significant differences between the circumstances in which judicial review was available in England and Wales and Northern Ireland, and the right of the citizen to invoke the supervisory jurisdiction of the Court of Session in Scotland. The first question was whether in Scotland too the scope for judicial review of unappealable decisions of the Upper Tribunal should be restricted in some way. The Advocate General’s position was that the Upper Tribunal should be amenable to judicial review to the same extent in the Court of Session as in the High Court in England. For the claimant it was submitted that that argument should be rejected as, whatever the position might be in England, the suggestion that grounds of judicial review of decisions of the Upper Tribunal should be restricted in Scotland was not supported by authority and to adopt it would destroy the consistency of Scots law. The position in Scotland was also more complicated than that which arose in England and Wales. The 2007 Act effected a complete reordering of the administrative justice system in England and Wales. That was certainly not true of Scotland. There were a large number of tribunals and similar bodies which sat in Scotland which were not included in the new structure. The decision of the Supreme Court in R (Cart) v Upper Tribunal  UKSC 28 not to endorse the approach of the Court of Appeal had made it much easier for the Scots approach to the supervisory jurisdiction in relation to unappealable decisions of the Upper Tribunal in Scotland to find common ground with that which must now be taken in England and Wales. The key to doing so lay in a recognition that the issue was not one about access to the remedy, which would remain available to the citizen as of right, or the purpose for which the supervisory jurisdiction might be exercised. It was an issue about how best to tailor the scope of the remedy according to the nature and expertise of the Upper Tribunal and the subject matter of the decisions that had been entrusted to it by Parliament. There was an element of flexibility within the system that had enabled the ground of judicial review to be adapted to a diverse range of decision making bodies. The fact that there was no substantial difference between English and Scots law as to the grounds on which the process of decision-making might be open to review provided further support for the argument that there should be no difference between them as to the scope for the judicial review of unappealable decisions of the Upper Tribunal on either side of the border. That was why Scots law had been able to follow the developments in the English approach to judicial review since Anisminic Ltd v Foreign Compensation Commission  2 AC 147 in preference to Watt v Lord Advocate 1979 SC 102. It would not therefore be a very large step for the Scots approach to unappealable deicisions of the Upper Tribunal to align itself with that which had been decided should be taken in England and Wales. The case was remitted to the Lord Ordinary to examine whether the claimant had sufficient grounds for judicial review.
 UKSC 29;  WLR (D) 204
SC(Sc): Lord Phillips of Worth Matravers PSC, Lord Hope of Craighead DPSC, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Clarke of Stone-cum-Ebony, Lord Dyson JJSC: 22 June 2011
Appearances: David Johnston QC and Simon Collins, both of the Scots Bar (instructed by Solicitor to the Advocate General) for the Advocate General; Jonathan Mitchell QC and Laura Drummond, both of the Scots Bar (instructed by Quinn Martin & Langan, Glasgow) for the claimant; James Mure QC and Anna Poole, both of the Scots Bar (instructed by Scottish Government Legal Directorate) for the Lord Advocate as intervener; Michael Fordham QC and Tim Buley (instructed by Herbert Smith LLP) for the Public Law Project as intervener; Alex Bailin QC, Aiden O’Neill QC and Iain Steele (instructed by Freshfields Bruckhaus Deringer LLP) by written submissions only for JUSTICE as intervener.
Reported by: Shirani Herbert, Barrister.