Tribunals, Courts and Enforcement Act 2007 PDF

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Tribunals, Courts and Enforcement Act 2007...

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Ministry of Justice, Transforming Tribunals: Implementing Part 1 of the Tribunals, Courts and Enforcement Act 2007 (2007), paras 177–9 177 The creation of the Upper Tribunal is probably the most significant innovation in the tribunal system. The need to rationalise the hotchpotch of appeal routes from administrative tribunals has been highlighted by a number of reports, including the Law Commission report on Administrative Law, the Woolf report on Civil Justice, and the Leggatt report. The present arrangements are illogical and incoherent, reflecting the piecemeal historical development of the tribunal system. Appeals routes from first instance tribunals in England and Wales vary between specialised tribunals, the High Court (Administrative Court or Chancery Division), and the Court of Appeal. In some cases there is no statutory right of appeal, but judicial review provides an alternative remedy in the Administrative Court; or judicial review may be required to fill the gaps in a restricted statutory scheme. There are similar variations in the form and nature of the appeal, for example: whether on law only, or on law and fact; whether leave is required; and whether the procedure is primarily oral or written. 178 The creation of the Upper Tribunal provides the opportunity not only to rationalise the procedures, but also to establish a strong and dedicated appellate body at the head of the new system. Its authority will derive from its specialist skills, and its status as a superior court of record, with judicial review powers, presided over by the Senior President. It is expected that the Upper Tribunal will come to play a central, innovative and defining role in the new system, enjoying a position in the judicial hierarchy at least equivalent to that of the Administrative Court in England and Wales. The government expects it to benefit from the participation of senior judges from the courts in all parts of the United Kingdom. Appeal from the Upper Tribunal will be to the Court of Appeal with permission. The Lord Chancellor intends to exercise his power to prescribe that such appeals in England and Wales will only be permitted in cases of general importance or for other special reason (as for second appeals from the courts). 179 The structure of the Upper Tribunal will need to reflect the variety of jurisdictions within its remit. It will work alongside the existing dedicated appeal systems, respectively, for asylum and immigration and for employment. These will continue as separate pillars of the new structure, each presided over by a High Court judge, but under the general supervision of the Senior President. Tribunals, Courts and Enforcement Act 2007 18 Limits of jurisdiction under section 15(1) (1)This section applies where an application made to the Upper Tribunal seeks (whether or not alone)— (a)relief under section 15(1), or (b)permission (or, in a case arising under the law of Northern Ireland, leave) to apply for relief under section 15(1). (2)If Conditions 1 to 4 are met, the tribunal has the function of deciding the application. (3)If the tribunal does not have the function of deciding the application, it must by order transfer the application to the High Court. (4)Condition 1 is that the application does not seek anything other than— (a)relief under section 15(1); (b)permission (or, in a case arising under the law of Northern Ireland, leave) to apply for relief under section 15(1); (c)an award under section 16(6);

(d)interest; (e)costs. (5)Condition 2 is that the application does not call into question anything done by the Crown Court. (6)Condition 3 is that the application falls within a class specified for the purposes of this subsection in a direction given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 (c. 4). (7)The power to give directions under subsection (6) includes— (a)power to vary or revoke directions made in exercise of the power, and (b)power to make different provision for different purposes. (8)Condition 4 is that the judge presiding at the hearing of the application is either— (a)a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, or a judge of the Court of Session, or (b)such other persons as may be agreed from time to time between the Lord Chief Justice, the Lord President, or the Lord Chief Justice of Northern Ireland, as the case may be, and the Senior President of Tribunals. (9)Where the application is transferred to the High Court under subsection (3)— (a)the application is to be treated for all purposes as if it— (i) had been made to the High Court, and (ii) sought things corresponding to those sought from the tribunal, and (b)any steps taken, permission (or leave) given or orders made by the tribunal in relation to the application are to be treated as taken, given or made by the High Court. (10)Rules of court may make provision for the purpose of supplementing subsection (9). … 19 Transfer of judicial review applications from High Court … (3)Where an application is transferred to the Upper Tribunal under 31A of the Senior Courts Act 1981 (c. 54) or section 25A of the Judicature (Northern Ireland) Act 1978 (transfer from the High Court of judicial review applications)— (a)the application is to be treated for all purposes as if it— (b)had been made to the tribunal, and (c)sought things corresponding to those sought from the High Court, (4)Where— (a)an application for permission is transferred to the Upper Tribunal under section 31A of the Senior Courts Act 1981 (c. 54) and the tribunal grants permission, or (b)an application for leave is transferred to the Upper Tribunal under section 25A of the Judicature (Northern Ireland) Act 1978 (c. 23) and the tribunal grants leave, the tribunal has the function of deciding any subsequent application brought under the permission or leave, even if the subsequent application does not fall within a class specified under section 18(6). (5)Tribunal Procedure Rules may make further provision for the purposes of supplementing subsections (3) and (4). NOTES 1.Sections 9 and 10 allow for the First-tier and Upper Tribunals to review their own decisions without the need for an appeal. If the tribunals decide that there was an accidental error in the record or the reasoning then this may be corrected or the decision may be set aside. If a decision is set aside the tribunal may re-decide the matter or if it is the First-tier Tribunal it

may refer it to the Upper Tribunal. Review may be instigated by the tribunal itself or by a party who has a right of appeal. 2.A party has, under s. 11, a right to an appeal on a point of law from the First-tier Tribunal to the Upper Tribunal. Permission to appeal is required from either the First-tier Tribunal or the Upper Tribunal. Some decisions are excluded from appeal under s. 11(5) and include: appeals against decisions on reviews in relation to criminal injuries compensation; appeals against national security certificates under the Data Protection Act 1998 and the Freedom of Information Act 2000; a decision by the First-tier Tribunal under s. 9 to review or not to review, to take or not take any action in the light of an earlier review, or to refer or not to refer a decision to the Upper Tribunal; and any decision of the First-tier Tribunal of a description specified in an order made by the Lord Chancellor. 3.On appeal the Upper Tribunal must set aside the decision if it finds an error of law and may remit to the First-tier Tribunal with directions for reconsideration, or make the decision which should have been made. If the Upper Tribunal finds that the error does not invalidate the decision then it may let the decision stand. 4.Under s. 13 there may be an appeal to the relevant appellate court, Court of Appeal, Court of Session, Court of Appeal of Northern Ireland. Permission is required from the Upper Tribunal or the relevant appellate court specified by the Upper Tribunal. Some decisions are excluded from appeal replicating those in s. 11(5) substituting Upper for First-tier Tribunal (see note 2, earlier). 5.The ‘revolutionary’ jurisdiction conferred on the Upper Tribunal is that of judicial review. Section 15 confers this jurisdiction on the Upper Tribunal and s. 19 allows for the transfer of judicial review applications from the High Court (s. 21 from the Court of Session). The Upper Tribunal, where it has jurisdiction, will be able to grant the same relief as if it were the High Court (Court of Session in Scotland) applying the same principles of judicial review in relation to permission, sufficient interest in the matter, delay in applying and grant of remedy. Where the Upper Tribunal makes a quashing order under s. 15(1) it may remit the matter to body which made the decision or substitute its own decision. The power to substitute its own decision is conditional on the decision in question having been made by a court or tribunal, the decision was quashed on the ground of error of law and, without the error, there is only one decision the court or tribunal could have made. 6.Section 19(1) inserts s. 31A in to the Senior Courts Act 1981 specifying the condition for required and discretionary transfer of judicial review applications to the Upper Tribunal. Section 19(2) and, ss 20 and 21 provide for Northern Ireland and Scotland respectively. A Practice Direction (2009) specifies two classes of judicial review cases which should be transferred from the Administrative Court to the Upper Tribunal. They are (1) any decision of the First-tier Tribunal concerning criminal injuries compensation, in respect of which there is no right of appeal to the Upper Tribunal and (2) any decision of the First-tier Tribunal for which there is no right of appeal. These do not apply if a declaration of incompatibility is sought under the Human Rights Act 1998. A second Practice Direction (2012) provides for certain immigration and asylum cases coming within the Upper Tribunal’s judicial review jurisdiction. 7.The Supreme Court has held in R (Cart) v Upper Tribunal [2011] UKSC 28, that the Upper Tribunal is itself amenable to judicial review of its unappealable decision to refuse to allow permission to appeal to it from the First-tier Tribunal on limited grounds which are (a) that it would raise some important point of principle or practice; or (b) that there is some other compelling reason for the relevant appellate court to review the case. These criteria are

drawn from second-tier appeals which apply to appeals on a point of law from the Upper Tribunal to the Court of Appeal in England and Wales, and also apply in Scotland and Northern Ireland, and were originally directed to regulate appeals to the Court of Appeal following a first appeal to the county court or High Court in England and Wales (Access to Justice Act 1999, s. 55). As Lady Hale SCJ said at para. 51: … the adoption of the second-tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself. It would recognize 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....