This note updates references in the book to R (Cart) v Upper Tribunal and to Eba v Advocate General for Scotland. The book (p 711) deals with the decisions of the Administrative Court and of the Court of Appeal in Cart, and of the Court of Session in Eba. Both were appealed to the Supreme Court, whose decisions in the two cases neatly solve the problems that these important cases had thrown up.
The issue in the cases is the scope of judicial review as regards the Upper Tribunal (on the scope of judicial review, see pp 710-11 of the book; on the Upper Tribunal see p 711). As reported in the book, the Court of Appeal (in Cart) and the Court of Session (in Eba) had taken diametrically different views on this question, in each case explained (in part) by the different jurisdictional histories of judicial review in English law and in Scots law. The Court of Appeal ruled that unappealable decisions of the Upper Tribunal could be judicially reviewed only in exceptional circumstances; the Court of Session considered that the right to seek judicial review in Scots law could not be so restricted.
The Supreme Court was able to hear argument simultaneously in both the English and the Scottish appeals (unlike the lower courts, which could focus only on one jurisdiction). In its judgments in the cases the Supreme Court has tried to steer a middle path between the excessively restrictive views of the Court of Appeal and Administrative Court, on the one hand, and the more liberal view of the Court of Session, on the other. What is at stake here is the attempt to balance two important principles of public law: first, the rule of law and, secondly, the recognition by generalist courts that particular matters of public administration are better left expert tribunals. As Lady Hale summarised it at para 33 of Cart, two principles need to be reconciled: the relative autonomy which Parliament has invested in tribunals; and the constitutional role of the court as the guardian of legality and due process. The rule of law would suggest that judicial review should not be restricted, but the principle that the expertise of tribunals should not be undermined would suggest that judicial review should be limited. The Supreme Court considered that the Court of Appeal had shown too much regard for tribunals’ autonomy and too little for the rule of law; and that the Court of Session had veered too far in the opposite direction.
The middle path unanimously adopted by the Supreme Court in both Cart and Eba avowedly aligns the availability (or scope) of judicial review in this context with statutory criteria governing the availability of appeals. Thus, judicial review will be available in respect of an otherwise unappealable decision of the Upper Tribunal either where the appeal raises an important point of principle or practice, or where there is some other compelling reason. Lady Hale said this of the path the Supreme Court was adopting:
It would recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual.
Agreeing with Lady Hale, Lord Dyson added the following remark:
the scope of judicial review should be no more (as well as no less) than is proportionate and necessary for the maintaining of the rule of law … In my view … unrestricted judicial review of unappealable decisions of the [Upper Tribunal] is neither proportionate nor necessary for maintaining the rule of law.
The judgment of the Supreme Court in Eba was given by Lord Hope, who ruled that the approach set out by Lady Hale and Lord Dyson in Cart should be adopted also in Scotland, reminding the Court of Session that it “should be slow to interfere with decisions that lie within the expertise of specialist tribunals” (para 47).
There are two further points to note about Cart and Eba. The first is that the Supreme Court accepted that there was no attempt to oust the jurisdiction of the court in the Tribunals, Courts and Enforcement Act 2007, the legislation that had created the Upper Tribunal (ouster of judicial review is considered at p 714 of the book).
The second point, important for Scots lawyers, is to note that Watt v Lord Advocate was overturned by the Supreme Court in Eba. Watt v Lord Advocate is cited at p 669 of the book as authority for the proposition that the old distinction between intra vires and ultra vires errors of law continued to be important in Scotland long after it had been abandoned in England (owing to Anisminic). Lord Hope in Eba ruled (at para 34) that “the time has come for it to be declared that … Watt v Lord Advocate is incompatible with what was decided in Anisminic” and that “there is, in principle, no difference between the law of England and Scots law as to the substantive grounds on which a decision by a tribunal acts within its jurisdiction may be open to review”.
The Supreme Court did terrific work in Cart and Eba, proving its great value as a United Kingdom court. It took a hard look at both English and Scots law and made them (1) compatible with one another when they had threatened to grow apart in a way that would have generated significant problems, and (2) better. The result achieved by the Supreme Court is an improvement on what both the Court of Appeal and the Court of Session had ruled.
Take note, Mr Salmond?