II. The New Tribunals System

The high volume of tribunal appeals generates significant pressure for onward challenges from the tribunals to the higher courts. Prior to the TCEA, tribunals were “overseen” by courts in the sense that tribunals' decisions could typically be examined by courts, albeit through a confusing and incoherent system of onward challenges.Footnote ¹² Given their (former) characterization as adjuncts of the administrative process, tribunals were regarded with the “deepest suspicion” and were often perceived as the poor relations of courts.Footnote ¹³ The conventional wisdom – which in large part reflected the primacy of ordinary courts within the Diceyan conception of the rule of lawFootnote ¹⁴ – had been that courts must stand as guarantors of the tribunals system: tribunal adjudication was rendered legitimate in part because of supervision by the higher courts; and allowing tribunals to exceed their jurisdiction would be to abandon the rule of law.Footnote ¹⁵ However, the new tribunals system possesses a number of interlocking features which present that conventional wisdom in a new context and may cast doubt upon it.

First, the reforms secure the judicial independence and status of tribunals to an unprecedented degree. This has been effected, inter alia, by enhancing the security of tenureFootnote ¹⁶ of tribunal judges,Footnote ¹⁷ making them subject to the same guarantee of judicial independence as court judges,Footnote ¹⁸ and shifting administrative responsibility for tribunals from their “sponsoring” government departments (whereby tribunals were funded by the very organizations against whose decisions they heard appeals) to HM Courts and Tribunals Service, an executive agency of the Ministry of Justice. Further judicialization may come with the possible creation of a single judicial head of the courts and tribunals judiciary.Footnote ¹⁹

Second, the TCEA created a new juridical structure. Approximately 20 individual tribunals have so far been transferred into the First-tier Tribunal (“FTT”). Although a single legal entity, the FTT is divided into six chambers, many of which are subdivided into several jurisdictions.Footnote ²⁰ The Upper Tribunal (“UT”), which determines appeals on points of law against the FTT's decisions, is divided into four chambers. This structure reflects Leggatt's desire for both jurisdictional flexibility – judges can be moved between jurisdictions and chambers, with obvious efficiency implications – and coherence. The latter objective is advanced by the creation of consistent pathways – as shown in the diagram – through the system: thus the FTT can review its own decisions (on its own initiative or at the request of a party),Footnote ²¹ as can the UT.Footnote ²² Most FTT decisions can be appealed on a point of law to the UT,Footnote ²³ with an onward right of appeal against most UT decisions (again on points of law only) to the Court of Appeal.Footnote ²⁴ However, that onward right of appeal is highly constricted, in that the normal second-tier appeal criteria apply: permission to appeal is only to be granted in cases which raise “some important point of principle or practice” or where there is “some other compelling reason”.Footnote ²⁵

Third, the UT has been invested with a set of characteristics that set it substantially apart from tribunals as traditionally conceived. Designated a “superior court of record”, the UT has a distinctive role as a strong and dedicated appeal body which can provide judicial leadership to the FTT.Footnote ²⁶ The intention is that the UT will play an innovative and defining role in the new system, occupying a position equivalent to that of the Administrative Court.Footnote ²⁷ To this end, the UT has taken the lead in providing, through lead cases, guidance to assist the FTT.

The status of the UT is augmented in a number of further respects. First, all High Court and Court of Appeal judges are ex officio members of the UT (as well as the FTT);Footnote ²⁸ some have sat regularly in the UT (Immigration and Asylum Chamber) thereby directly contributing to the quality of its decisions. Second, three UT Chamber Presidents are High Court judges. Third, there has been the developing “tribunalisation” of judicial review through the UT. There is a clear recognition in the TCEA that many judicial review cases which raise ordinary legal issues can be more appropriately and conveniently dealt with by the UT because of its expertise in particular areas of law. The Act imbues the UT with powers of judicial review that are largely identical to those of the High Court, save that they are exercisable only in relation to prescribed matters.Footnote ²⁹ Indeed, the UT has exclusive judicial review jurisdiction in relation to certain matters (in the sense that the High Court is obliged to transfer cases concerning such matters to it),Footnote ³⁰ including those FTT decisions against which no right of appeal exists.Footnote ³¹

Parallel with these reforms have been significant developments in the Administrative Court. Prompted by uneven geographical distribution of judicial review claims, that court has recently been regionalised.Footnote ³² The court's caseload has also increased significantly over recent years, which has produced delays and an evident desire for the court to focus its limited resources. One means of doing this has been to transfer some of the judicial review caseload to the UT. Some low-volume categories of judicial review were transferred early on.Footnote ³³ In 2011, the transfer of an especially high-volume area – asylum fresh claim judicial reviews, of which there have been around 1,000 annually – relieved more of the pressure on the Administrative Court.Footnote ³⁴ What this suggests is that the UT's role is, at least in part, a function of two factors: its own expertise; and the caseload pressures of the Administrative Court.

It was against this background that the Supreme Court in Cart considered the nature of the relationship between courts and tribunals today. The narrow question in Cart was this: could a party unsuccessful before the FTT and who had been refused permission to appeal to the UT then seek judicial review in the Administrative Court of that refusal? However, this narrower question inevitably raised wider issues: what is, and what should be, the relationship between the tribunals and the courts? And, what sort of factors – legal doctrine or policy considerations – shape that relationship?

III. Ouster Clauses, “Superior Courts of Record” and the Constitutional Status of Judicial Review

Those wider issues would not have fallen for consideration at all in Cart had the boldest of the arguments concerning judicial review of the UT met with judicial agreement. The argument was that by designating the UT a “superior court of record”, Parliament had excluded any possibility of judicial review.Footnote ³⁵ This argument was, however, as Lady Hale later remarked,Footnote ³⁶ “comprehensively demolished” by Laws L.J. at first instance. Laws L.J. endorsed the uncontroversial view that judicial review can be excluded “only by the most clear and explicit words”, as Denning L.J. put it in R. v Medical Appeal Tribunal, ex parte Gilmore.Footnote ³⁷ Statutorily designating a body as a superior court of record, pointed out Laws L.J., “says nothing on its face about judicial review”, and therefore fails to meet Gilmore's explicitness requirement.Footnote ³⁸ Laws L.J. supplemented this approach by considering more specifically the meaning of the term “superior court of record”. He noted that there were many dicta to the effect that so designating a body immunizes it against judicial review,Footnote ³⁹ and that academic commentators had taken it as read that the UT would therefore be immune from review.Footnote ⁴⁰ Nevertheless, Laws L.J. concluded that the better reading of the authorities was that the distinction between a superior and an inferior court reflected the distinction between “a court which is presumed to act within its powers until the contrary is shown and a court which enjoys no such presumption and whose proceedings must demonstrate on their face that the case in hand falls within its jurisdiction”.Footnote ⁴¹

Of course, asking whether a given formulation discloses a sufficiently clear intention to remove certain matters from the purview of the courts is only a worthwhile endeavour if, in the first place, it is constitutionally possible for Parliament to effect such a removal. It is noteworthy, then, that the way in which Laws L.J. interpreted the provision in the TCEA designating the UT a “superior court of record” was secondary to his conviction that Parliament is incapable of insulating legislation against interpretative control by an independent judicial authority. The absence of such control would cause statutory texts “at length be degraded to nothing more than a matter of opinion”: and since this would undermine the effectiveness of statute law, the requirement of interpretative control by independent judicial authorities – and Parliament's resultant inability to dispense with such control – was “not a denial of legislative sovereignty, but an affirmation of it”.Footnote ⁴² This is an ingenious attempt to render orthodox that which is inherently heterodox: Laws L.J. likened this putative limit upon Parliament's legislative freedom to the (supposed) rule that Parliament cannot bind its successors, both restrictions being conditions precedent to each successive Parliament's capacity to enact effective statute law. On this novel view, ouster clauses do not, as is normally thought, require courts to choose between upholding the rule of law on the one hand and parliamentary sovereignty on the other. Rather, judicial neutralization of – even disobedience to – ouster clauses is demanded by parliamentary sovereignty itself.

Space precludes detailed analysis of this argument, although it potentially opens a Pandora's box: what else might Parliament be prevented from doing in order that courts may save it from undermining the effectiveness of its own enactments? More generally, Laws L.J. arguably used an idiosyncratic conception parliamentary sovereignty as a Trojan horse whereby rule of law considerations are in practice elevated in a manner that is at odds with the orthodox conception of legislative supremacy. Such conceptual gymnastics, while possessing a certain intellectual grace, are ultimately a distraction from the underlying question whether the constitutional architecture is in the process of being realigned such that fundamental principles – such as those upheld via judicial review – are beyond legislative disturbance.Footnote ⁴³ Against that background, it is perhaps significant that when Cart was decided by the Supreme Court, Lady Hale (in line with views she had earlier expressed in Jackson)Footnote ⁴⁴ cited with approval Laws L.J.'s remarks concerning the limits of Parliament's legislative authority,Footnote ⁴⁵ while Lord Phillips noted that they were controversial but did not explicitly reject them.Footnote ⁴⁶ Of course, Cart does not bring clarity to this area – the crunch question did not squarely fall to be confronted in the absence of an explicit ouster clause – but it adds to the already rich tapestry of dicta and extra-judicial remarks in which the constitutional fundamentality of judicial review is hinted at with increasing directness.

IV. Judicial Review and the Rule of Law

The foregoing points towards two possibilities, the distinction between them generally being less practically important than that which unites them: either it is constitutionally impossible for Parliament unilaterally to remove matters from judicial control, or it is very difficult for Parliament to do so (in that unusually strong principles of interpretation tell against ascribing such effects to statutory provisions). Anisminic clearly demonstrated that one of these propositions – but not which one – is true.Footnote ⁴⁷ At the same time, it would be simplistic to assert that it is impossible or even difficult for Parliament to oust the High Court's inherent supervisory jurisdiction per se. For instance, courts are quite prepared to give effect to legislative ouster of that jurisdiction when this is accompanied by provisions vesting in the High Court a broadly comparable statutory jurisdiction.Footnote ⁴⁸ This serves as a reminder that the true objection to bald privative clauses is not that they oust the supervisory jurisdiction itself, but that they threaten the rule of law by excluding from the purview of any independent judicial body of appropriate constitutional stature the interpretation of the relevant legislation and the supervision of the statutory body concerned. Consequently, when exclusion of judicial review is accompanied by some alternative arrangement for oversight that meets the minimum requirements of the rule of law, there is no constitutional need, or justification, for judicial intransigence, whether by means of outright disobedience or strained interpretation.

From this flows a broader point: that, whether or not a given statutory regime contains anything resembling a privative clause, the constitutional case for judicial review by the High Court will lie somewhere on a continuum ranging from marginal (or even non-existent) at one end, to compelling (or, depending on one's point of review, non-negotiable) at the other. So, in Cart, once the statutory designation of the UT as a “superior court of record” came to be regarded largely as a distraction, the courts had to engage with what Lady Hale, in the Supreme Court, described as “[t]he real question”: “what level of independent scrutiny outside the tribunal structure is required by the rule of law[?]”Footnote ⁴⁹

In R v Cripps, ex parte Muldoon, Goff L.J. said that whether an election court was a suitable candidate for judicial review turned upon whether it had “a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court is for that reason inappropriate”.Footnote ⁵⁰ For Laws L.J., then, the issue in Cart was whether the UT could be regarded as the “alter ego” of the High Court.Footnote ⁵¹ He concluded that it could, bearing in mind its independence, its stature, its position “at the apex of a new and comprehensive judicial structure” for the determination of administrative appeals, and its possession of a judicial review jurisdiction closely analogous to that of the High Court.Footnote ⁵² And while the Court of Appeal subsequently rejected Laws L.J.'s characterization of the UT as an alter ego of the High Court – the very fact that the UT had been statutorily invested with powers of judicial review showed that it was not the High Court's equal – it nevertheless accepted that “the new tribunal structure … is something greater than the sum of its parts” in that it represented “a newly coherent and comprehensive edifice” for the resolution of administrative appeals.Footnote ⁵³ By those somewhat different analyses, the Divisional Court and the Court of Appeal arrived at a common conclusion. Endorsing an approach adopted in R. (Sivasubramaniam) v Wandsworth County Court Footnote ⁵⁴ concerning the susceptibility to judicial review of County Court decisions refusing permission to appeal, they held that the UT would be vulnerable to review only if guilty of an “outright excess of jurisdiction” in the pre-Anisminic sense, or a procedural irregularity so grave as to amount to a “fundamental denial of justice”.Footnote ⁵⁵ On this view, for example, a “mere” error of law would be unreviewable, but a “four corners” error – such as an assertion by a tribunal of jurisdiction over a subject area not statutorily assigned to it – would be.

If these conclusions had been accepted by the Supreme Court, they would have represented a highly minimalistic approach to judicial review of the UT. As Laws L.J. put it, while judicial review would have been available, the possibility would have been “theoretical”, so “grossly improbable” would be the commission by the UT of relevant errors.Footnote ⁵⁶ It is noteworthy, however, that in arriving at this position, the lower courts' principal focus was upon (as Laws L.J. put it) configuring the judicial review jurisdiction so as to meet “the practical demands of the rule of law”.Footnote ⁵⁷ Such were the institutional characteristics and qualities of the UT that the rule of law was felt neither to compel nor to justify subjecting it to “judicial review's full panoply”.Footnote ⁵⁸ Indeed, Lord Phillips, in the Supreme Court, had been sorely tempted to go further still, his initial inclination having been “to treat the new two-tier tribunal system as wholly self-sufficient”.Footnote ⁵⁹ In the end, however, he was persuaded by Lady Hale's judgment – the substance of which commanded the agreement of all members of the Court – according to which it was necessary, at least for the time being, for the UT to be amenable to judicial review, and on grounds broader than those contemplated by the lower courts. The Supreme Court's unanimous view was that the extent of judicial control of the tribunals system was best delimited by reference to the second-tier appeal criteria. As a result, it is only possible to seek judicial review of a UT decision – just as it is only possible to appeal against such a decision – if the case raises “some important point of principle or practice” or if judicial review is necessary in the light of “some other compelling reason”. This approach, it was said, was a proportionate one that would ensure that the demands of the rule of law were met in a way that made efficient use of scarce judicial resources.Footnote ⁶⁰ In this way PDR considerations were placed front and centre by the Supreme Court.

V. Jurisdiction, the Second-Tier Appeal Criteria and the Autonomy of the Tribunals System

On the face of it, the Supreme Court's unwillingness to endorse the lower courts' approach calls into question the viability of Carnwath's vision of an “anti-hierarchical” relationship between courts and tribunals, according to which the latter would be largely free to develop a distinctive tribunals jurisprudence with little interference from ordinary courts. Certainly, the Supreme Court made it clear that it envisaged judicial review in circumstances broader than those for which the lower courts' decisions in Cart would have allowed. As Lord Dyson put it in Cart, the absence of judicial review risked “the fossilisation of bad law” within the tribunals systemFootnote ⁶¹ – and restricting judicial review in line with the lower courts' approach would insulate post-Anisminic errors in a way that “does not promote the rule of law”.Footnote ⁶² Meanwhile, Lady Hale noted that the lower courts' approach would risk the development of “local law” in the sense that erroneous or outmoded constructions might be perpetuated if the regular courts were effectively locked out of the tribunals system.Footnote ⁶³ This view is built partly upon institutional competence – the implication being that High Court and Court of Appeal judges may be better situated to furnish corrections – and partly upon precedent, the risk being that the tribunals system might continue to apply precedent set by the courts thinking (perhaps wrongly) that those courts would be unwilling to disturb it. How, then, does the Supreme Court's approach differ from that of the lower courts – and to what extent does it impinge upon the autonomy of the tribunals system?

This is, in part, an obviously practical question, which we examine below: how much more likely is intervention by the courts under the framework adopted by the Supreme Court? However, a logically prior doctrinal question also arises. Notwithstanding the Justices' concerns, sketched above, about the risks of unduly limiting judicial review of the UT, the Supreme Court's invocation of the second-tier appeal criteria plainly imposes considerable restrictions upon the availability of review. But what doctrinal form do those restrictions take? The Court of Appeal supplied a clear answer to this question:Footnote ⁶⁴ only in exceptional circumstances, such as the making of a pre-Anisminic jurisdictional error or a denial of fundamental justice, would the UT trespass “outside the range of its decision-making authority”.Footnote ⁶⁵ Errors not crossing the exceptionality threshold would be unreviewable because, in the first place, they would disclose no excess of jurisdiction. On this analysis, then, the doctrinal vehicle for limiting judicial review was to be the ascription to the UT of unusually broad vires. In contrast, Lady Hale and Lord Dyson – the Supreme Court Justices who addressed this point most directly – were highly resistant to the idea of reintroducing the distinction between jurisdictional and non-jurisdictional errors of law, which, as Lady Hale put it, had been “given its quietus by the majority in Anisminic”.Footnote ⁶⁶ Indeed, in Eba – Cart's Scottish counterpart – Lord Hope laid to rest the notion, sustained by Lord President Emslie's judgment in Watt v Lord Advocate,Footnote ⁶⁷ that the distinction persisted in Scots administrative law.Footnote ⁶⁸ There were two reasons why the Supreme Court rejected any return to a category of non-jurisdictional errors of law. First, requiring courts to draw distinctions between jurisdictional and non-jurisdictional errors would involve a “return to some of the technicalities of the past” and consequential practical difficulties.Footnote ⁶⁹ Secondly, as Lord Dyson noted, the distinction was simply incompatible with constitutional principle, in particular the rule of law, because it would insulate from review serious (but non-jurisdictional) errors of law raising important points of principle.Footnote ⁷⁰

On the Supreme Court's analysis, then, the UT is not authorized conclusively to determine questions of law, meaning that it is capable of committing jurisdictional errors of law in the same (wide) range of circumstances as other statutory bodies. This, in turn, means that decisions, reached in reliance upon the second-tier appeal criteria, to grant or deny permission to seek judicial review (or, for that matter, to appeal on a point of law) cannot be taken to reflect any conclusion as to whether the UT has acted lawfully or unlawfully. Whereas the Court of Appeal's approach in Cart accorded a very wide jurisdiction to the UT, meaning that the commission of an error of law would have been extremely rare, the Supreme Court's analysis makes it inevitable that situations will arise in which the UT commits jurisdictional errors of law that cannot be challenged on review (or, for that matter, appeal).Footnote ⁷¹ The Supreme Court's judgment, then, in a sense presents a post-jurisdictional view of administrative law – analysis of the extent of the UT's legal powers being secondary to the application of PDR-inspired criteria that limit the availability of review but which are not tied to any assessment of the scope of the body's jurisdictional competence. On this approach, whether judicial review lies turns centrally upon a pragmatic assessment of the case for intervention by a court, as opposed to any conventional doctrinal analysis.

The extent to which the second-tier appeal criteria preclude challenges to unlawful UT decisions obviously depends upon precisely how they are interpreted and applied. And while the Supreme Court evidently thought that judicial review should be available more readily than the lower courts' approach would have permitted, it is certainly not the case that the second-tier appeal criteria are easily satisfied. As Lady Hale said, the Supreme Court's preferred approach “would lead to a further check [upon the UT], outside the tribunals system, but not one which could expect to succeed in the great majority of cases”.Footnote ⁷² Lord Dyson, meanwhile, said that the first of the second-tier appeal criteria, requiring an “important point of principle or practice”, will only be satisfied where there is an element of “general interest” – it is not enough that the law has “not been properly applied in the particular case”; and the second criterion, requiring “some other compelling reason”, will be met only if the case “cries out for consideration” by a court.Footnote ⁷³ This relatively restrictive view of the second-tier appeal criteria as they apply to the UT – which is itself reflective of the general case law on the meaning and application of those criteriaFootnote ⁷⁴ – is, if anything, pressed further by the post-Cart decision of a powerfully-constituted Court of Appeal in PR (Sri Lanka) v Secretary of State for the Home Department.Footnote ⁷⁵ The Court said that “compelling”, in the “compelling reason” limb, means “legally compelling, rather than compelling, perhaps, from a political or emotional point of view”.Footnote ⁷⁶ Meanwhile, the Court suggested that the first criterion might carry a particularly limited meaning in respect of the UT. The context, said the Court, “is relevant”: “The point of principle or practice should be not merely important, but one which calls for attention by the higher courts, specifically the Court of Appeal, rather than left to be determined within the specialist tribunal system.”Footnote ⁷⁷ On this view, it would be comparatively rare for permission to be granted either to appeal against or to seek judicial review of the UT's decisions. All of this suggests that notwithstanding the Supreme Court's rejection of the doctrinal approach which the lower courts used to impose fixed limits on judicial review of the UT, judicial review under the Supreme Court's preferred approach is unlikely to be commonplace.

VI. Onward Challenges

Understanding Cart at a doctrinal level is important, but it only offers us one perspective. Underlying the whole issue of judicial oversight of tribunals lie a wider set of questions which, to some extent, transcend the doctrinal issues. How many opportunities should a party have for challenging a tribunal decision? How extensive should onward rights of challenge be? What degree of legal error, if any, can be tolerated? Answering these questions requires the ascertainment and then ranking of different considerations: not only the general interest in ensuring legality, but also the cost and expense of onward challenges, and the degree to which courts should recognize the expertise of tribunals.

A good starting point is to consider the functions of onward rights of challenge. Systems of onward challenge serve a range of private and public purposes. The private or corrective purpose is to put right any legal error which results in an injustice to the individual claimant. For instance, the claimant may contend that the tribunal has incorrectly applied the law in the particular case. Onward challenges can also serve wider public purposes, such as: ensuring public confidence in the administration of justice; allowing the higher courts to clarify and develop the law, practice, and procedure; and maintaining the standards of first-instance courts and tribunals. A classic illustration of an onward challenge serving a wider public purpose is one that raises some broader point of law or practice, the outcome of which will affect other similar cases. Such onward challenges may be of considerable benefit to lower tribunals – as a source of authoritative guidance, and thereby a means of ensuring consistency amongst tribunal judges. All onward challenges, at least potentially, serve a corrective purpose because the claimant is seeking to persuade the higher tribunal or court that there has been a legal error; but only some onward challenges also serve a wider public purpose.

These different functions of onward challenges reflect different types of public law litigation. Much judicial review litigation can be differentiated into two categories: “bureaucratic” judicial review and “policy” or “high-profile” judicial review.Footnote ⁷⁸ Bureaucratic judicial review is primarily concerned with remedying unlawful decisions that only affect the individual claimants involved. By contrast, policy judicial review is concerned with resolving constitutional disputes and with clarifying general points of law and practice which affect not just the individual claimant, but many other individuals as well. In this way, policy judicial review may involve the setting of guidance or precedent to be followed in the future by lower courts and tribunals.

Given the distinct functions involved, a principal issue is how to organize any system of onward challenges. A number of different considerations are relevant in this regard, such as: the need to correct legal errors; the different role of judicial bodies within the overall judicial hierarchy; and limited judicial resources. Examination of the issue can be facilitated by drawing upon the economic analysis of law which tends to view the goal of legal procedure as the minimization of both error and administrative costs.Footnote ⁷⁹

Consider first error costs. The primary purpose of any system of onward challenges is to reduce the number of legal errors that can result from the adjudication process. For instance, if a social security tribunal failed to give adequate reasons for a decision, then the appellant's error costs would include not knowing the proper reasons for the decision and potentially the wrongful denial of a welfare benefit. By correcting such errors, a system of onward challenge reduces those costs. Such legal error costs are significant, but they have to be weighed alongside the other types of cost that arise. These include the direct administrative costs of operating the legal dispute-resolution process for identifying and correcting such errors. These costs are not negligible and always have to be weighed in any consideration of legal process. There are also indirect opportunity costs, that is, the costs that arise elsewhere in the wider judicial system if resources are dedicated to correcting errors in one area of casework. For instance, allowing challenges in one area of decision-making may well, given limited resources, increase overall delays in judicial decision-making and reduce administrative certainty.

However, bearing in mind the different purposes of onward challenges outlined above, error costs are not limited to the individual claimant involved. The error costs involved in a challenge serving the private interests of the individual claimant may well be significant, but they will not be as great as the potential error costs arising from the adoption by various tribunals of an erroneous approach to some wider point of law or practice that will adversely affect many other similar cases. The difference here is between the error costs that arise when (say) a social security appellant's individual application has not been lawfully determined and those costs occasioned when a wider category of such appellants' appeals have not been legally determined because tribunals have consistently misconstrued a legal rule of general application.

To summarise: checks over tribunal decisions are necessary (no decision-making process is infallible), yet they are also costly. In theory, there should be an optimum point at which the costs of operating a system of onward challenges outweighs the benefits of correcting such errors. While this type of analysis has its difficulties – not least those associated with quantifying and comparing the different costs involved – it does illuminate the underlying and perennial tensions in organizing aspects of legal procedure, such as onward challenges.Footnote ⁸⁰

Abstractly stated, there is then an inherent trade-off between different considerations – legality, cost, certainty, and timeliness – yet such matters will also be influenced by more concrete experience. Consider, for instance, experience of judicial review of tribunal decisions over recent years. Tribunals operate across many different areas of law and their caseloads fluctuate, yet three tribunal systems stand out in terms of the volume of appeals that they handle: social security; immigration; and employment.Footnote ⁸¹ In terms of judicial review of permission to appeal decisions, only immigration has figured prominently in terms of caseload. Although it was well-established that the refusal of permission to appeal by a social security commissionerFootnote ⁸² was open to challenge through judicial review on conventional public law grounds,Footnote ⁸³ such challenges were rare and never generated any problems.Footnote ⁸⁴ By contrast, judicial review has been used extensively in the immigration and asylum context, partly because claimants wish to challenge adverse decisions that affect crucial human rights and partly because claimants have an incentive to delay unwelcome decisions. Over recent years, the burden placed on the Administrative Court by asylum and immigration cases has been considerable, and has generated unacceptable delays.Footnote ⁸⁵ It has also meant that the Administrative Court has, over recent years, been dealing with a repetitive and routine caseload rather than targeting its resources on those challenges with the most wide-ranging consequences. It is apparent that Parliament, the government, and the courts have all been concerned about the pressures here, which have prompted various changes in the organization of onward challenges in the immigration context, such as the move from a two-tier appeal structure to a single tier of appeal, and then transfer into the TCEA scheme.Footnote ⁸⁶ Nonetheless, this transfer still left open the question raised in Cart: could a party refused permission to appeal by the UT seek judicial review of that refusal?

VII. Cart and Proportionate Dispute Resolution

In Cart, the court's answer was to allow judicial review only if the second-tier appeal criteria are fulfilled, meaning that judicial review is unavailable if its sole purpose is to correct a legal error that only affects the individual claimant involved. As noted above, the Supreme Court's reasoning was primarily influenced not by doctrinal considerations, but by concerns of proportionate dispute resolution. So, it held, while judicial review should be available to challenge the legality of decisions, its scope should be no more than is proportionate and necessary for maintaining the rule of law. In the context of the UT, unrestricted judicial review would be disproportionate in light of: the re-organisation of the tribunal system and, in particular, the UT's status and expertise; the availability of opportunities to challenge adverse decisions within the tribunal system; and the limited resources of the Administrative Court. The importance of the last consideration – and hence the need for a proportionate system of onward challenges – is illustrated by Lady Hale's contention that “[t]here must be a limit to the resources which the legal system can devote to the task of trying to get the decision right in any individual case”.Footnote ⁸⁷ Likewise, Lord Phillips noted that “judges must pay due regard to the fact that, even where the due administration of justice is at stake, resources are limited”.Footnote ⁸⁸

The Supreme Court's explicit recognition of the need to attain a proportionate balance between the cost of challenges and their importance is notable. It has been observed that the use of efficiency and cost arguments to restrict the availability of onward challenge runs contrary the rhetoric and values of legality.Footnote ⁸⁹ Of course, resource considerations and judicial review caseloads have, at times, influenced substantive law and procedure.Footnote ⁹⁰ Nonetheless, the explicit invocation of efficiency and resource arguments in Cart represents an important shift in judicial reasoning: PDR has received judicial recognition. As Lord Phillips noted, “Rights of appeal should be proportionate to the grounds of complaint and the subject matter of the dispute. More than one level of appeal would not normally be justified unless an important point of principle or practice was involved.”Footnote ⁹¹

Following Cart, merely pointing to a litigant's private interest in correcting a legal error is insufficient; it is also necessary to demonstrate that the case raises an element of wider public interest. On the Supreme Court's approach, the increment in potential error costs arising in cases fulfilling the second-tier appeal criteria justifies the availability of judicial review; conversely, the error costs in claimant-specific challenges are outweighed by the administrative or transaction costs that such challenges impose on the Administrative Court. After all, part of the rationale for amalgamating different tribunals into the TCEA system was to rationalize the previously confused and illogical network of appeal routes and to introduce procedural simplicity; to allow many cases to proceed to judicial review would risk undermining the new scheme. This approach expressly recognizes that there is an acceptable level of legal error because of the competing demands placed upon the limited resources of the judicial process.Footnote ⁹² In other words, only some legal errors – namely, those which have broader significance – are worth correcting; by providing guidance on a general point of principle or practice, the judicial resources invested are justified because of the implications for other cases. More broadly, any justice system must be able to deliver a sound way of settling disputes and ensuring both that cases can be resolved as quickly and justly as possible and that only appropriately important cases proceed further up the judicial hierarchy for resolution.

VIII. Tribunal Practice

The Supreme Court's view in Cart was that the criteria for onward appeals should be informed by “experience of how the new tribunal system is working in practice”.Footnote ⁹³ Before the Supreme Court decided Cart, the UT (Immigration and Asylum Chamber) had put significant efforts into allocating appropriate judicial resources at the UT permission to appeal stage. Applications for permission to appeal against FTT decisions are determined by Senior Immigration Judges acting as FTT judges. Renewed applications to appeal to the UT are decided by a selected panel of Senior Immigration Judges, usually on the papers, but with the option of an oral hearing if necessary. In cases of doubt, the Tribunal has generally considered it appropriate to grant permission to appeal. Given comparable rates of granting permission between the High Court and the UT, the UT has suggested that it gives at least as intensive scrutiny to cases as was formerly the case.Footnote ⁹⁴

Looking to the future, it is possible to envisage potential difficulties given reduced provision of legal aid.Footnote ⁹⁵ While legal aid has always been limited in relation to tribunals, further restrictions present the familiar problem of tribunals seeking to deal with unrepresented appellants who are often amongst the most vulnerable, and resultant inefficiencies for the tribunal process. The problem can be quite acute, especially when the jurisdiction of the second-tier court or tribunal is limited to correcting errors of law. Tribunals are generally obliged to offer assistance to unrepresented appellants.Footnote ⁹⁶ Given that the UT's refusal of permission will mark the end of the road, it is likely to be all the more necessary for adequate judicial resources to be channeled into the permission stage if justice is to be done. The other option is that, following Cart, the UT changes its own approach when considering applications for permission to appeal by simply granting permission in order to remove any possibility of judicial review.

IX. Managing Judicial Relationships

In one sense, a system of onward challenges implies a hierarchical structure in which superior tribunals or courts correct decisions of lower tribunals. However, as Nobles and Schiff have argued, a fuller appreciation of onward challenges places at least equal weight upon the need for higher courts to establish stable, workable relationships with the bodies that they supervise.Footnote ⁹⁷ From this perspective, the relationship between a higher and a lower court or tribunal may best be conceived of not in terms hierarchical control, but by reference to the need for self-restraint on the part of the higher court, in order that the lower court or tribunal may proceed with its workload without substantial interference while also ensuring its decisions are subject to a further check. In the context of the new tribunals system, the crucial relationship is that between the UT and the Administrative Court: how is this relationship to be effectively managed? And what factors shape that relationship?

Some relevant factors – finality, the minimisation of delay and cost, and the reducing of the burdens on the Administrative Court – have already been mentioned, but there are other relevant matters. A particularly important consideration is that the UT comprises a dedicated cadre of specialist senior tribunal judges whose role is to develop the law through guidance on substantive legal rules and on overarching principles of administrative law as applied by tribunals, as well as through practical guidance on decision-making.Footnote ⁹⁸ The UT's specialist expertise and its role in providing judicial leadership is reflected in its divisional structure. By contrast, as a generalist court, the Administrative Court hears judicial review cases from across the range of governmental action, but it is not necessarily specialist in any particular area of law. The tensions that can arise between a generalist higher court and a specialist lower court or tribunal are well-known.Footnote ⁹⁹ At the same time, although the UT has been formed through an amalgamation of well-established specialist second-tier tribunals, it is a relatively recent creation and does not possess the long-standing pedigree and status of the Administrative Court. Furthermore, the jurisdiction of the Administrative Court is based on common law whereas the UT's jurisdiction is statutory and therefore susceptible to changes in legislative and executive policy.

A central issue is then the relative expertise of the UT vis-à-vis the Administrative Court. It has often been assumed that specialization in a particular area of law generates expertise which should be respected. For instance, tribunals develop their expertise in both the complex legal rules they apply and also in the broader policy context and the fact-finding challenges involved in adjudication.Footnote ¹⁰⁰ Many of the pre-UT tribunals, such as the Social Security Commissioners, had well-established reputations as expert bodies.Footnote ¹⁰¹ The UT's different chambers administer highly complex areas of law – social security, immigration, and so on – and therefore develop a particular expertise in those areas of law. Tribunal expertise is buttressed by two other features. First, there has been the expanding jurisdiction of tribunals beyond the simple determination of statutory appeals. For instance, some tribunals, such as the Social Security Commissioners (now the Upper Tribunal (Administrative Appeals Chamber)), can assess the legality of secondary legislation.Footnote ¹⁰² Also, the jurisdiction of tribunals is not limited to just applying relevant statutory rules, but also involves the application of general principles of public law – thereby avoiding the cost, delay and potential injustice of multiple proceedings.Footnote ¹⁰³ Secondly, the UT is aware, through its extensive overview of FTT decisions, of those issues which are causing difficulties at first instance, which, in turn, enables it to give priority to suitable appeals so as to facilitate the giving of authoritative guidance. These features of the UT and of its predecessor tribunals prompted the higher courts to develop a doctrine that challenges against the decisions of expert tribunals should be approached by the courts with an appropriate degree of caution.Footnote ¹⁰⁴ Tribunal expertise is, though, not a given fact, but something to be demonstrated – principally through the quality of a tribunal's decisions and reasons. Furthermore, there is a risk that the amalgamation of tribunals might dilute rather than enhance the specialist expertise of tribunal judges, though this is clearly something that the Senior President of Tribunals will be aware of, given the post's responsibility to ensure that tribunal members possess expertise.Footnote ¹⁰⁵

Set against this background, the restriction of judicial review in Cart is a clear statement of the Supreme Court's confidence in the UT. The assumption is that a senior tribunal judge is just as adequate to the task of handling individual onward challenges as a High Court judge. However, to the extent that the Administrative Court retains a supervisory jurisdiction over the UT, there is a potential for tension between the two bodies, especially in light of the intention that the UT's status will be equivalent to that of the Administrative Court. Put simply, excessive leakage of judicial review challenges on important points of principle or practice could pose problems and has the potential to undermine the UT's position. The tension arises precisely because the UT's role is to use its expertise to issue guidance, yet judicial review of the UT's refusal of permission is restricted to correcting important points of principle or practice. If, when exercising this jurisdiction, the Administrative Court shows little deference to the UT, then this may encourage judicial reviews, thereby increasing caseloads and delays. It may also generate uncertainty for both the FTT and UT, which will still need to determine appeals pending authoritative judgment(s) from the Administrative Court. It could also work to draw the source of guidance away from the UT to the Administrative Court and, ultimately, it could lead to something of a stand-off between the two bodies. If a workable relationship is to be maintained, the Administrative Court will need to exercise restraint; at the same time, it will also have to correct important errors.

To illustrate the re-ordering of the judicial hierarchy and the relationships involved, consider the role of precedent in the UT-Administrative Court relationship. Tribunals do not have a common law based jurisdiction and have therefore often been seen as lacking the power to set precedents. However, some second-tier tribunals, and now the UT, have developed their own mechanisms for identifying lead decisions which are to be followed by first-instance tribunals.Footnote ¹⁰⁶ This is essential in terms of producing guidance for the lower tribunals and for providing judicial leadership. Also, the higher courts have accorded respect to lead judgments of second-tier tribunals; for instance, in the context of asylum appeals, the Court of Appeal has explicitly encouraged the immigration tribunal to give detailed guidance on country conditions to ensure consistency of approach amongst different tribunals when determining asylum cases.Footnote ¹⁰⁷

However, looking at the matter from the opposing perspective, the crucial issue is the extent to which tribunals consider themselves bound by higher court decisions. Given that there is a direct right of appeal from substantive UT decisions to the Court of Appeal, it is clear that the UT is bound by decisions of that court. What, though, is the position as regards decisions of the Administrative Court? As Carnwath has argued, recent developments, including the TCEA, imply a different notion of judicial hierarchy, one which is based not so much on the formal level occupied by the relevant judge, as on the notion of a cadre of specialist judges whose expertise generates a status that exceeds their formal position within the judicial structure. What matters under this new model is that those shaping the law in a particular area should possess the relevant specialist competence to do so. In terms of formal institutional relationships, tribunals were previously bound by Administrative Court decisions.Footnote ¹⁰⁸ However, with the creation of the UT, it is possible to detect a change in the relationship. The UT does not regard itself as formally bound by High Court decisions when it exercises a jurisdiction formerly exercised by the High Court.Footnote ¹⁰⁹ Indeed, the UT's view is that where specialised issues arise, it may in a proper case feel less inhibited in revisiting issues decided even at High Court level, if there is good reason to do so.Footnote ¹¹⁰ For its part, the Administrative Court has noted that “the mutuality of respect constitutionally required of judicial institutions demands that the Upper Tribunal follow decisions of this court”; judicial comity requires Administrative Court decisions to be followed unless they are considered to be wrong.Footnote ¹¹¹ Following Cart, Administrative Court decisions judicially reviewing the UT will no doubt be treated as binding.Footnote ¹¹² Nonetheless, the “co-ordinate” nature of the two bodies means that considerations of judicial comity necessarily cut both ways, inviting a mutuality of respect. That suggests, in part, that the Administrative Court should in the first place adopt a cautious approach so that it only intervenes where necessary and thereby avoids the kind of excessive intervention that could undermine the position of the UT.

Managing the relationship between the two bodies is more a matter of developing judicial policy and practice than of strict law.Footnote ¹¹³ Effective communication between the UT and the Administrative Court through the Senior President will be crucial as will the ability of higher court judges to sit in the UT and thereby contribute to the quality of its decision-making by way of direct involvement rather than by way of subsequent correction. As noted above, Lord Phillips' initial inclination in Cart had been to treat the new tribunal system as self-contained, but he was persuaded that there was, “at least until we have experience of how the new tribunal system is working in practice, the need for some overall judicial supervision”.Footnote ¹¹⁴ The informal understandings of the relationship between the Administrative Court and UT will be significant in terms of informing practice.