Eba v Advocate General for Scotland [Sup Ct]

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD HOPE
Judgment Date22 June 2011
Neutral Citation[2011] UKSC 29
Date22 June 2011
Docket NumberNo 1

[2011] UKSC 29

THE SUPREME COURT

Trinity Term

On appeal from: [2010] CSIH 78

before

Lord Phillips, President

Lord Hope, Deputy President

Lord Rodger

Lady Hale

Lord Brown

Lord Clarke

Lord Dyson

Eba
(Respondent)
and
Advocate General for Scotland
(Appellant) (Scotland)

Appellant

David Johnston QC

Simon Collins

(Instructed by Office of the Solicitor to the Advocate General for Scotland)

Respondent

Jonathan Mitchell QC

Lorna Drummond

(Instructed by Quinn Martin and Langan)

Intervener (Public Law Project)

Michael Fordham QC

Tim Buley

(Instructed by Herbert Smith LLP)

Intervener (JUSTICE)

Alex Bailin QC

Aidan O'Neill QC

Iain Steele

(Instructed by Freshfields Bruckhaus Deringer LLP)

Intervener (Lord Advocate)

James Mure QC

Anna Poole

(Instructed by The Scottish Government Legal Directorate)

LORD HOPE, delivering the judgment of the Court

1

This is an appeal from an interlocutor of the First Division of the Inner House of the Court of Session (the Lord President (Hamilton), Lord Kingarth and Lord Brodie) of 10 September 2010: [2010] CSIH 78, 2010 SLT 1047, 2011 SC 70. By that interlocutor the First Division allowed a reclaiming motion by Blajosse Charlotte Eba against an interlocutor of the Lord Ordinary (Lord Glennie) dated 31 March 2010: [2010] CSOH 45, 2010 SLT 547. It refused a cross-appeal against that interlocutor by the Advocate General for Scotland, representing the Department for Work and Pensions. The issue with which it was concerned was the scope of the remedy of judicial review in the Court of Session of decisions of the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act") which are excluded from review by way of an appeal.

2

The Lord Ordinary had dismissed Ms Eba's petition for judicial review of a decision of Judge DJ May QC, sitting as a judge of the Upper Tribunal, dated 6 February 2009. Judge May had refused her application for permission to appeal to the Upper Tribunal against the refusal on 27 January 2009 by the First-tier Social Entitlement Chamber of her appeal against the refusal by the Department on 11 February 2008 of her claim to disability living allowance. The First Division, reversing the decision of the Lord Ordinary, held that the decision of the Upper Tribunal on this matter was amenable to judicial review under the supervisory jurisdiction of the Court of Session and that the grounds on which it could be reviewed were not subject to any limitation on policy or discretionary grounds: para 65.

3

Ms Eba had also sought judicial review of the decision by the First-tier Tribunal on 27 January 2009 to refuse her application for permission to appeal to the Upper Tribunal. Section 11(3) of the 2007 Act provides that the right to appeal to the Upper Tribunal may be exercised only with permission. Section 11(4) provides that permission may be given by the First-tier Tribunal or the Upper Tribunal. But, as there was an alternative remedy against the decision of the First-tier Tribunal because permission could also be sought from the Upper Tribunal, the focus of attention throughout these proceedings has been on the decision of the Upper Tribunal to refuse permission: see the Lord Ordinary, 2010 SLT 547, para 1.

4

It should be noted that there was no right of appeal to the Court of Session against the Upper Tribunal's decision to refuse permission, as section 13(1) of the 2007 Act provides that the right to appeal to that court on any point of law arising from a decision of the Upper Tribunal does not extend to an "excluded decision". Section 13(8)(c) provides that for the purposes of section 13(1) an "excluded decision" includes any decision of the Upper Tribunal on an application under section 11(4) for permission to appeal. So the only way that unappealable decisions of that kind would be open to challenge in Scotland would be by way of judicial review in the Court of Session under the supervisory jurisdiction of that Court.

The issues

5

The appeal by the Advocate General in Ms Eba's case was heard together with appeals by the applicants against the decision of the Court of Appeal in R (Cart) v Upper Tribunal [2010] EWCA Civ 859, [2011] 2 WLR 36, [2011] QB 120 and that by Sullivan LJ in MR (Pakistan) v Upper Tribunal [2010] EWHC 3558 (Admin) which raised the same issue. In Cart the Court of Appeal held that the unappealable decisions of the Upper Tribunal were amenable to the supervisory jurisdiction of the High Court in those cases only where the Upper Tribunal had exceeded its own jurisdiction in the sense understood prior to the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 or where it conducted the hearing so unfairly as to render its decision a nullity: [2011] 2 WLR 36, para 37.

6

In setting the boundaries of the supervisory jurisdiction in this very narrow way in relation to the Upper Tribunal, the Court of Appeal in Cart applied the decision in R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738, [2003] 1 WLR 475. In that case the Court of Appeal held that the supervisory jurisdiction was not available for the review of decisions of the county courts, save only in very rare and exceptional circumstances. These were where it was sought on the ground of an absence of jurisdiction as opposed to a mere error of law, or where there had been a procedural irregularity such that the applicant had been denied a fair hearing. In MR (Pakistan) Sullivan LJ held that the reasoning in Cart, in which the decision that was under review came from the Social Entitlement Chamber, applied to unappealable decisions of the Immigration and Asylum Chamber of the Upper Tribunal too. The Lord Ordinary in Ms Eba's case followed the reasoning of the Divisional Court in Cart: 2010 SLT 547, para 76.

7

The Advocate General joined with the Secretary of State for Justice, the Secretary of State for the Home Department and the Child Maintenance and Enforcement Commission in supporting the decision of the Court of Appeal in Cart and of the High Court in MR (Pakistan), and there is much that is common ground between all three appeals. But a separate judgment is needed in Ms Eba's case in view of the questions that her case raises that are of particular interest in Scotland. The principal issue in her case relates to the grounds on which a decision of the Upper Tribunal to refuse permission to appeal under section 11(4) of the 2007 Act is amenable to the supervisory jurisdiction of the Court of Session. Ms Eba submits that unappealable decisions of the Upper Tribunal are amenable to the supervisory jurisdiction of the Court of Session on the grounds applicable to public tribunals in general which, she maintains, are without limit and have never been, and should not be, circumscribed.

8

This issue lies at the heart of the relationship between the Court of Session and the new system for specialist tribunals which was created by the 2007 Act. On the one hand there is the rule of law, which is the basis on which the entire system of judicial review rests. Wherever there is an excess or abuse of the power or jurisdiction which has been conferred on a decision-maker, the Court of Session has the power to correct it: West v Secretary of State for Scotland 1992 SC 385, 395. This favours an unrestricted access to the process of judicial review where no other remedy is available. On the other hand there is the principle of finality. There is obvious merit in achieving finality at the tribunal level in the delivery of administrative justice. The new structure introduced by the 2007 Act lends force to this argument.

9

The importance of the issue is not, of course, confined to Scotland. The new, simplified statutory framework for tribunals which the 2007 Act created extends to England and Wales and to Northern Ireland too. The provisions of section 11 as to the right to appeal to the Upper Tribunal with permission (or, in Northern Ireland, leave) on any point of law arising from a decision made by the First-tier Tribunal apply to those jurisdictions as well. The provisions of section 13(1) and section 13(8)(c), which exclude from the right of appeal under section 13(2) decisions of the Upper Tribunal to refuse permission to appeal to the Court of Session, apply also to refusals of permission to appeal to the Court of Appeal in England and Wales or the Court of Appeal in Northern Ireland.

10

There are however two further issues which need to be considered in Ms Eba's case. The first arises because there are significant differences between the circumstances in which the remedy of judicial review is 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, then, is 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 is that the intention of Parliament 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, and that the First Division of the Court of Session was wrong to hold otherwise. For Ms Eba it is submitted that this argument should be rejected as, whatever may be held to be the position in England, the suggestion that the grounds of judicial review of decisions of the Upper Tribunal should be restricted in Scotland is not supported by authority and to adopt it would destroy the consistency of Scots law.

11

The position in Scotland is also more complicated than that which arises in England and Wales. The 2007 Act can be said to have effected a complete reordering of the system of administrative justice in England and Wales. But that is certainly not true of Scotland. There are a large number of tribunals and other...

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