Doing Judicial Review in the Post-Eba Era: A v Secretary of State for the Home Department

Date01 September 2014
Publication Date01 September 2014
Pages395-400
DOI10.3366/elr.2014.0232
AuthorChris Himsworth
<p>The idea that access to judicial review, as one of the core ingredients of the rule of law, has a fundamental status in the constitutional order has wide appeal. If it is suggested that an “ouster clause” might have the effect of excluding judicial review, the judicial response is robust, whether, for instance, in the form of the House of Lords’ judgment in <italic>Anisminic Ltd v Foreign Compensation Commission</italic> <xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p><a href="https://vlex.co.uk/vid/anisminic-ltd-v-foreign-792897841">[1969] 2 AC 147</a>. </p> </fn> or that of the UK Supreme Court (“UKSC”) in <italic>AXA General Insurance Ltd v Lord Advocate.</italic> <xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p><a href="https://vlex.co.uk/vid/axa-general-v-u-818718353">[2011] UKSC 46</a>, 2012 SC (UKSC) 122 at paras 42-52 per Lord Hope and at paras 135-153 per Lord Reed.</p> </fn></p> <italic>EBA V ADVOCATE GENERAL FOR SCOTLAND</italic>

If outright exclusion of review by a legislature produces such resistance, it seems that even a narrowing of the scope of review in the pursuit of apparently worthy constitutional ideals, this time at the hand of the courts, may be just as problematic. Such a narrowing was what was intended in June 2011 by the UKSC in Eba v Advocate General for Scotland 3

[2011] UKSC 29, 2012 SC (UKSC) 1.

(for Scotland) and R (Cart) v Upper Tribunal 4

[2011] UKSC 28, [2012] 1 AC 663.

(for England and Wales). Those cases followed a period of uncertainty in both jurisdictions following the implementation of the Tribunals, Courts and Enforcement Act 2007 about whether and, if so, in what circumstances the “unappealable decisions” of the Upper Tribunal (“UT”) (to refuse to permit appeal to itself from a First-tier Tribunal) were reviewable. The options ranged from the application of the normal principles of review applicable to any statutory body through to the possibility, in the light of the UT's special character, of no review at all. Between the two was the possibility of a compromise solution, a less intrusive form of review, and it was this that was adopted by the UKSC, with care taken to ensure that the same principles would apply in the two jurisdictions.5

Eba at paras 38-47 per Lord Hope.

The form of words used to encapsulate the new “benchmark” was adopted, by “analogy”, from the language already used to identify the circumstances in which “second appeals” could be taken from the UT into the Inner House or Court of Appeal under the 2007 Act and it had two limbs. The case had to involve either “some important point of principle or practice” or “some other compelling reason” to justify its further consideration. Such a test was a “rational and proportionate”6

Cart at para 57 per Lady Hale.

response to the new situation. It would reduce the amount of judicial review business.7

Eba at paras 38 and 49 per Lord Hope.

It maintained an appropriate balance between the rule of law and finality.8

Eba at para 8 per Lord Hope.

Job done

Well, not quite. We shall return to the review criteria and their fitness for purpose but it has also to be recalled that, for their application in Scotland, Lord Hope added in Eba that he “would be leaving it to the Court of Session to give such further guidance as may be needed as to how this analogy with the second appeals criterion should be applied in practice”.9

Eba at para 49.

He offered some suggestions of his own which included urging that the question whether one or other of the twin tests was satisfied “must depend on the facts of each case” and that the tests “ought to be capable of being applied at the earliest possible stage, and certainly at the stage of the first hearing,” but encouraging the use of the first orders stage.10

He relied especially on Y v Secretary of State for the Home Department 2010 SLT 170.

The Lord Ordinary should consider the question whether there was “an arguable case” that the test's criteria were satisfied before granting a first order. Lord Hope did not stipulate how the Court of Session might communicate its “further guidance” (to itself) on the new approach to review. Might this be done, at least in part, by an amendment to the Rules of Court? Might it be done by decisions in an individual case or cases? In an early case Lord Glennie expected this to emerge by “the accretion of cases” in the Outer House.11

Oluwasegun Olalekan Oke, Petitioner [2012] CSOH 50 at para 11.

In AKA v The
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