Is the Upper Tribunal amenable to judicial review in the High Court?

The Supreme Court has granted leave for an appeal in the case of R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent).  

A revised tribunal structure

 Under the Tribunals, Courts and Enforcement Act 2007 the Tribunal structure has been radically reformed so that many of the pre-existing tribunals have been brought into either the First-Tier Tribunal or the Upper Tribunal.  Each of those tribunals divides into Chambers.  A summary of the new tribunal structure, which was recommended by the Leggatt Report may be seen here.  [Please also see Law and Lawyers 18^th January 2010].  

Is the Upper Tribunal amenable to judicial review?

The Upper Tribunal is designated as a “Superior Court of Record” and the question arose as to whether, given that designation, judicial review proceedings could be taken against a decision of the Upper Tribunal.   
In 2009, the High Court Queen’s Bench Division gave judgment on the matter – here – and concluded that the Upper Tribunal was open to judicial review but only on the very limited grounds of either acting in outright excess of jurisdiction or denial of a right to a fair hearing.   The judgment was delivered by Laws LJ and is a tour de force on the subject.  The Court of Appeal (Civil Division) – Sedley, Richards LJJ and Sir Scott Baker – upheld that conclusion of law though the reasons differed in part.    (The Court of Appeal’s judgment has an Appendix setting out the new tribunal structure).  This matter is now to be heard by the Supreme Court.

Interestingly, the almost identical question arose in Scotland which has its own distinct legal system and was the subject of a Court of Session (Inner House) judgment in Blajosse Eba v Advocate-General for Scotland [2010] CSIH 78.  It was held that decisions of the Upper Tribunal could be reviewed and that express legislation would be required to restrict that supervisory jurisdiction.  The term “Superior Court of Record” had no legal significance in Scots Law. 

This is an important and complex question.  The distinction between review and appeal has to be borne in mind.  Review is concerned with whether the court (or other body or person) under review has acted within the law.  It is not concerned with the actual merits of the decision reached by the decision-maker.  An appeal differs in that the merits of the decision can be looked at.  The term “superior court of record” has not been properly defined but was perhaps generally understood to mean that decisions of the court could not be reviewed by another court though there might be an appeal process to a further court.  A court of record was also empowered to punish for contempt – e.g. for disobedience of its orders.  Parliament has designated a number of new “courts” as “superior courts of record” – e.g. the Special Immigration Appeals Commission (SIAC) and the Court of Protection.  If there was no possibility at all of judicial review then there would be nothing to stop Parliament designating (say) the Home Secretary as a “superior court of record” and then no judicial review could lie against Home Office decisions.  For an interesting article on these lines see the excellent Scots Law and Practice blog by Jonathan Mitchell QC -  15^th December 2009.  

The Supreme Court’s decision will be awaited with considerable interest.  There is much to be said for the point of view that if Parliament wishes to exclude or limit judicial review then it must say so directly and expressly and not rely on rather antiquated terms of obscure meaning.

For a further article on this subject see Judicial Review of UT – Tax Journal 11th October 2010 – Craig Connal QC