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TRIBUNAL JUSTICE AND PROPORTIONATE DISPUTE RESOLUTION

  • Mark Elliott (a1) and Robert Thomas (a2)
Abstract

The tribunals system in England and Wales has been transformed by the entry into force of the Tribunals, Courts and Enforcement Act 2007; among other things, tribunals are now located more firmly and explicitly than ever before within the judicial branch. Questions concerning the relationship between tribunals and regular courts fall to be confronted afresh within this new institutional landscape. Those questions form the focus of this article, which is particularly concerned with the issue recently considered by the Supreme Court in Cart whether, and if so to what extent, decisions taken within the tribunals system (by the Upper Tribunal) should be susceptible to judicial review by the High Court. In Cart, emphasis was placed upon the concept of “proportionate dispute resolution” as a means by which to delimit regular courts' oversight of tribunals' decisions, raising fundamental questions both of legal doctrine (relating to the relevance of the orthodox doctrinal tools of administrative law) and legal policy (concerning the degree of error on the part of a tribunal that a higher court should tolerate in the interests of the efficient, or proportionate, use of judicial resources).

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Corresponding author
Address for correspondence: Dr Mark Elliott, Faculty of Law, 10 West Road, Cambridge CB3 9DZ. Email: mce1000@cam.ac.uk.
Address for correspondence: Professor Robert Thomas, The University of Manchester, School of Law, Manchester M13 9PL. Email: robert.thomas@manchester.ac.uk.
References
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1 Administrative Justice and Tribunals Council, Securing Fairness and Redress: Administrative Justice at Risk? (London 2011), 13. The figure for criminal justice includes cases decided at both Crown Court and magistrates' court level, but excludes guilty pleas.

2 The jurisdiction of the tribunals system created by the TCEA extends principally to England and Wales, but there is UK-wide jurisdiction in relation to certain subject areas (e.g. asylum and immigration, and tax) that are “reserved” under the terms of the devolution settlement.

3 Sir Andrew Leggatt, Tribunals for Users: One Service, One System (London 2001).

4 Report of the Franks Committee on Administrative Tribunals and Enquiries (Cmnd 218, 1957) at [40].

5 Senior President of Tribunals, Second Implementation Review (London 2008), para 11.

6 P. Cane, Administrative Tribunals and Adjudication (Oxford 2010), 72.

7 R. Carnwath, “Tribunal Justice – A New Start” [2009] P.L. 48 at 57.

8 R. (Cart) v Upper Tribunal; R. (MR (Pakistan)) v Upper Tribunal [2011] UKSC 28, [2011] 3 W.L.R. 107 (hereinafter “Cart”).

9 Eba v Advocate General for Scotland [2011] UKSC 29, [2011] 3 W.L.R. 149 (hereinafter “Eba”). In this article, reference is principally made to Cart. The conclusions reached in Eba were consistent with those reached in Cart, but Cart contains more detailed judicial discussion of relevant issues.

10 Department of Constitutional Affairs, Transforming Public Services: Complaints, Redress and Tribunals (Cm 6253, 2004), ch. 2.

11 See further Adler, M., “Tribunal Reform: Proportionate Dispute Resolution and the Pursuit of Administrative Justice” (2006) 69 M.L.R. 958.

12 Woolf, H., “A Hotchpotch of Appeals – The Need for a Blender” (1988) 7 C.J.Q. 44.

13 Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, [2006] 1 W.L.R. 781 at [36] (Lady Hale).

14 A.V. Dicey, An Introduction to the Study of the Law of the Constitution (Basingstoke 1959), pp. 194–5.

15 See the Franks Report, note 4 above at [107]; R v Medical Appeal Tribunal, ex parte Gilmore [1957] 1 Q.B. 574, 586 (Lord Denning M.R.).

16 TCEA, sch. 2, paras 3–4; sch. 3, paras 3–4.

17 TCEA, ss. 4–5; sch. 2, para 1; sch. 3, para. 1.

18 Constitutional Reform Act 2005, s. 3(7A) and sch. 14.

19 Senior President of Tribunals, Annual Report (London 2011), pp. 6–7.

20 For instance, the Health, Education and Social Care Chamber consists of four jurisdictions: Care Standards, Mental Health, Special Educational Needs and Disability, and Primary Health Lists.

21 TCEA, s. 9.

22 TCEA, s. 10.

23 TCEA, s. 11.

24 TCEA, s. 13.

25 TCEA, s. 13(6); Appeals from the Upper Tribunal to the Court of Appeal Order, SI 2008/2834. The second-tier appeal criteria have been applied to civil appeals since the Access to Justice Act 1999, s. 55.

26 TCEA, s. 3(5).

27 Ministry of Justice, Transforming Tribunals (London 2007), 36.

28 TCEA, ss. 4(1)(c) and 5(1)(g) read with s. 6(1).

29 TCEA, ss. 15–21 and Senior Courts Act 1981, s. 31A.

30 Senior Courts Act 1981, s. 31A. And see TCEA, s. 20 and Judicature (Northern Ireland) Act 1978, s. 25A in respect of transfers from the Court of Session and the Northern Ireland High Court respectively.

31 Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 W.L.R. 327.

32 The May Committee, Justice Outside London: Report of Judicial Working Group (2007); S. Nason, “Regionalisation of the Administrative Court and the Tribunalisation of Judicial Review” [2009] P.L. 440.

33 See Practice Direction (Upper Tribunal: Judicial review jurisdiction) [2008] W.L.R. (D) 336 (concerning judicial reviews relating to criminal injuries compensation) and R. (FZ) v Croydon London Borough Council [2011] EWCA Civ 59, [2011] P.T.S.R. 748 at [31]-[32] (concerning asylum age assessment judicial reviews).

34 Borders, Citizenship and Immigration Act 2009, s. 53; Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) (No 2) [2012] 1 W.L.R. 16; Senior President of Tribunals, Practice Directions: Fresh Claim Judicial Review in the Immigration and Asylum Chamber of the Upper Tribunal (October 2011).

35 TCEA, s. 3(5).

36 [2011] UKSC 28, [2011] 3 W.L.R. 107 at [30].

37 [1957] 1 Q.B. 574 at 583.

38 [2009] EWHC 3052 (Admin), [2010] 2 W.L.R. 1012 at [29].

39 Eg In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 W.L.R. 700 at [6] (Lord Phillips M.R.).

40 Eg De Smith, Woolf and Jowell, Judicial Review (London 2007, 6th ed), para. 1–093.

41 [2009] EWHC 3052 (Admin), [2010] 2 W.L.R. 1012 at [54].

42 Ibid. at [38].

43 A view with which Laws L.J. has elsewhere associated himself: International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158, [2003] Q.B. 728 at [71]–[82].

44 R. (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 A.C. 262 at [159].

45 [2011] UKSC 28, [2011] 3 W.L.R. 107 at [30].

46 Ibid., at [73].

47 Anisminic Ltd. v Foreign Compensation Commission [1969] 2 A.C. 147.

48 Smith v East Elloe Rural District Council [1956] A.C. 736; R v Secretary of State for the Environment, ex parte Ostler [1977] Q.B. 122.

49 [2011] UKSC 28, [2011] 3 W.L.R. 107 at [51].

50 [1984] Q.B. 68.

51 [2009] EWHC 3052 (Admin), [2010] 2 W.L.R. 1012 at [40]–[42].

52 Ibid., at [87].

53 [2010] EWCA Civ 859, [2011] Q.B. 120 at [42].

54 [2002] EWCA Civ 1738, [2003] 1 W.L.R. 475.

55 [2010] EWCA Civ 859, [2011] Q.B. 120 at [37].

56 [2009] EWHC 3052 (Admin), [2010] 2 W.L.R. 1012 at [99].

57 Ibid., at [93].

58 Ibid., at [93].

59 [2011] UKSC 28, [2011] 3 W.L.R. 107 at [91].

60 Ibid., at [89] (Lord Phillips).

61 Ibid., at [112].

62 Ibid., at [110].

63 Ibid., at [43].

64 Albeit that the content of the limits favoured by the Court of Appeal differed from those adopted by the Supreme Court.

65 [2010] EWCA Civ 859, [2011] Q.B. 120 at [37].

66 [2011] UKSC 28, [2011] 3 W.L.R. 107 at [40].

67 1979 S.C. 120.

68 [2011] UKSC 29, [2011] 3 W.L.R. 149 at [29]–[34].

69 [2011] UKSC 28, [2011] 3 W.L.R. 107 at [40].

70 Ibid., at [110]. In this paragraph, Lord Dyson somewhat confusingly refers to the notion of “non-jurisdictional”errors of law. It appears, however, that he is not condoning the existence of such a category of errors of law, but is rather using the term as shorthand for those errors of law that might, before Anisminic, have been regarded as non-jurisdictional.

71 The possibility arises, however, of such decisions being challenged collaterally, even if they cannot be challenged directly. Take, for instance, a remedial order issued by the UT disclosing an error of law, but one that cannot be challenged on appeal or review because the second-tier appeal criteria are not met. On the Court of Appeal's approach, no possibility of collateral challenge would arise because, unless the exceptional circumstances threshold was crossed, the decision would be valid notwithstanding the error of law. In contrast, the Supreme Court's approach would leave room to argue that the unappealable, unreviewable order was nevertheless collaterally challengeable on account of a jurisdictional error of law rendering it a nullity. If the second-tier appeal criteria ruled out a direct challenge, it would be difficult to argue (in line with R. v Wicks [1998] A.C. 92) that collateral challenge had been impliedly excluded.

72 [2011] UKSC 28, [2011] 3 W.L.R. 107 at [56].

73 Ibid., at [130].

74 Uphill v BRB (Residuary) Ltd. [2005] EWCA Civ 60, [2005] 1 W.L.R. 2070; Cramp v Hastings Borough Council [2005] EWCA Civ 439. See generallyJenns, , “Is it all downhill for second appeals?” (2006) 25 C.J.Q. 439.

75 [2011] EWCA Civ 988, [2012] 1 W.L.R. 73 (Lord Neuberger M.R., Sir Anthony May P., Carnwath L.J. (Senior President of Tribunals)). The restrictiveness of the second-tier appeal criteria and of the interpretation accorded to them by the Court of Appeal in PR (Sri Lanka) is evident in the recent refusal of the Ouseley J. to quash several UT decisions declining to grant permission to appeal: R. (Khan) v Secretary of State for the Home Department [2011] EWHC 2763 (Admin).

76 [2011] EWCA Civ 988, [2012] 1 W.L.R. 73 at [36]. In JD (Congo) v Secretary of State for the Home Department [2012] EWCA Civ 327 it was held that this should not be interpreted as meaning that “extreme consequences” for the individual were irrelevant, but that “absent a sufficiently serious legal basis for challenging the UT's decision, extreme consequences would not suffice”. It was also held in JD that the second-tier appeal criteria are sufficiently flexible to take account of the different circumstances in which onward appeal to the Court of Appeal might be sought. The classical situation is where the individual has lost twice (at FTT and UT levels) and is seeking a third bite of the cherry. However, an individual might win in the FTT and then lose on appeal to the UT, or might get the FTT's decision quashed (on account of an error of law) but then lose by virtue of the UT substituting a new adverse decision and dismissing the appeal against that decision. In the latter scenario, the graver the failure at first instance, the more generously the second-tier appeal criteria should be applied (according to JD) in recognition of the fact that there will not genuinely have been two prior levels of judicial consideration.

77 [2011] EWCA Civ 988, [2012] 1 W.L.R. 73 at [37].

78 See P. Cane, “Understanding Judicial Review and its Impact” in M. Hertogh and S. Halliday (eds), Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (Cambridge 2004), 18–19.

79 See generally Posner, R.A., “An Economic Approach to Legal Procedure and Judicial Administration” (1973) 2 Journal of Legal Studies 399.

80 A.I. Ogus, Costs and Cautionary Tales: Economic Insights for the Law (Oxford, Hart 2006), 110–111.

81 In 2010–11, 93 per cent of all tribunal appeals (831,000) were received by Social Security and Child Support (SSCS), Employment Tribunals (ET) and Immigration and Asylum (IA): Ministry of Justice, Annual Tribunals Statistics 2010–11 (London 2011), 6.

82 The role of social security commissioners has now been absorbed by the Upper Tribunal (Administrative Appeals Chamber).

83 Bland v Chief Supplementary Benefit Officer [1983] 1 W.L.R. 262; R. v Secretary of State for Social Services, ex parte Connolly [1986] 1 W.L.R. 421.

84 R. (Cart) v Upper Tribunal [2011] UKSC 28, [2011] 3 W.L.R. 107 at [51]; R. (Wiles) v Social Security Commissioner [2010] EWCA Civ 258 at [51]. See also P. Robson, “Judicial Review and Social Security” in T. Buck (ed), Judicial Review and Social Welfare (London 1998).

85 Lord Chief Justice, Review of the Administration of Justice in the Courts (HC 448, 2008), 36; May Committee, note 32 above, para. 46.

86 See R. Thomas, Administrative Justice and Asylum Appeals (Oxford, Hart 2011), 240–253.

87 [2011] UKSC 28, [2011] 3 W.L.R. 107 at [41].

88 Ibid., at [89].

89 Nobles, R. and Schiff, D., “The Right to Appeal and Workable Systems of Justice” (2002) 65 M.L.R. 676, 683.

90 See, e.g., R. v Secretary of State for the Home Department, ex parte Swati [1986] 1 All E.R. 717; Puhlhofer v London Borough of Hillingdon [1986] A.C. 484. See also Sunkin, M., “What is Happening to Applications for Judicial Review?” (1987) 50 M.L.R. 432.

91 [2011] UKSC 28, [2011] 3 W.L.R. 107 at [68].

92 Ibid., at [42] (Lady Hale).

93 Ibid., at [92] (Lord Phillips).

94 Senior President of Tribunals, Annual Report (London 2011), 30–31.

95 Legal Aid, Sentencing and Punishment of Offenders Act 2012.

96 R (IB) 2/04 Decision of the Social Security Commissioners (now the Upper Tribunal (Administrative Appeals Chamber) (21 January 2004) at [32]; Mongan v Department for Social Development [2004] NICA 16 at [14]-[17]; Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495.

97 See Nobles and Schiff, note 89 above.

98 G. Hickinbottom, “A Forum to Clarify and Develop the Law”, Tribunals (Spring 2009) 3.

99 See generally S. Legomsky, Specialized Justice (Oxford 1990).

100 Leggatt report, note 3 above, paras. 1.12–1.13.

101 See Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, [2005] 1 W.L.R. 967 at [30]. See also T. Buck, D. Bonner, and R. Sainsbury, Making Social Security Law (Aldershot 2005), 172–177.

102 Chief Adjudication Officer v Foster [1993] A.C. 754.

103 AA v Secretary of State for the Home Department (Highly Skilled Migrants: legitimate expectation) Pakistan [2008] UKAIT0003 at [32]–[58] (Immigration Tribunal can apply general public law principles); Oxfam v Her Majesty's Revenue and Customs [2009] EWHC 3078 (Ch), [2010] S.T.C. 686 at [61]–[71] (jurisdiction of the Tax Tribunal includes common law principles).

104 Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All E.R. 279 at [15]–[17]; AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] A.C. 678 at [30].

105 [2011] UKSC 28, [2011] 3 W.L.R. 107 at [54] (Lady Hale); TCEA s. 2(3)(c).

106 See Buck, T., “Precedent in tribunals and the development of principles” (2006) 25 C.J.Q. 458.

107 See, e.g., Manzeke v Secretary of State for the Home Department [1997] Imm. A.R. 524, 529 (Lord Woolf M.R.); S and Others v Secretary of State for the Home Department [2002] I.N.L.R. 416, 435–436 (Laws L.J.).

108 However, even this has on occasion been questioned. For instance, in one case a Senior Immigration Judge described an Administrative Court decision as “a first instance decision not binding on the Tribunal, and not likely to be followed by it”, a view which Beatson J.considered “to be a surprising approach for a tribunal judge to take to a decision of the Administrative Court”. See R. (K) v Secretary of State for the Home Department [2010] EWHC 3102 (Admin) at [19]–[20].

109 Secretary of State for Justice v RB [2010] UKUT 454 (AAC) at [40]-[43]. See also AW v Essex County Council [2010] UKUT 74 (AAC) at [33].

110 Secretary of State for Justice v RB [2010] UKUT 454 (AAC) at [41]. By way of comparison, the Employment Appeal Tribunal, a “superior court of record” (Employment Tribunals Act 1996, s. 20(3)), has for many years asserted a right to depart from High Court decisions, although treating them as of great persuasive authority, see Portec (UK) v Mogenson [1976] 3 All E.R. 565.

111 R. (B) v London Borough of Islington [2010] EWHC 2539 (Admin), [2011] P.T.S.R. 716 at [31].

112 Secretary of State for Justice v RB [2010] UKUT 454 (AAC) at [46].

113 cf. PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988, [2012] 1 W.L.R. 73 at [39].

114 [2011] UKSC 28, [2011] 3 W.L.R. 107 at [92].

115 For contrasting views, see T. Allan, “Doctrine and theory in administrative law: an elusive quest for the limits of jurisdiction” [2003] P.L. 429; C. Forsyth, “Showing the fly the way out of the flybottle: the value of formalism and conceptual reasoning in administrative law” [2007] C.L.J. 325.

116 [2011] UKSC 28, [2011] 3 W.L.R. 107 at [91].

117 Ibid., at [100].

118 Franks Report, note 4 above at [107] (emphasis added).

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