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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Eba (AP) v The Advocate General for Scotland [2010] ScotCS CSIH_78 (10 September 2010)
URL: http://www.bailii.org/scot/cases/ScotCS/2010/2010CSIH78.html
Cite as: [2010] ScotCS CSIH_78, [2010] CSIH 78, 2010 SCLR 759, 2010 SLT 1047, 2010 GWD 31-634, [2010] STI 2617, [2010] STC 2689

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Kingarth

Lord Brodie

[2010] CSIH 78

P1253/09

OPINION OF THE COURT

delivered by THE LORD PRESIDENT

in Reclaiming Motion

by

BLAJOSSE CHARLOTTE EBA (AP)

Petitioner and Reclaimer;

against

THE ADVOCATE GENERAL FOR SCOTLAND

Respondent:

_______

Act: J Mitchell, Q.C., Drummond; Drummond Miller LLP (for Quinn Martin & Langan, Glasgow)

Alt: D Johnston, Q.C., Collins; Office of the Solicitor to the Advocate General

10 September 2010

Introduction

[1] On 11 February
2008 a claim by the petitioner and reclaimer for disability living allowance was refused by the Department of Work and Pensions. In November 2008 an appeal against that decision was refused by the First-tier Tribunal Social Entitlement Chamber, established under the tribunal system introduced by the Tribunals, Courts and Enforcement Act 2007. Applications for permission to appeal to the Upper Tribunal were refused respectively by the First-tier Tribunal on 27 January 2009 and by the Upper Tribunal on 6 February 2009. The petitioner thereafter sought judicial review of each of those decisions. The focus of the submissions before the Lord Ordinary, and before this court, was the decision of the Upper Tribunal. The respondent is the Advocate General for Scotland, representing the Department. The Upper Tribunal was served with the petition but did not appear to make submissions. This reclaiming motion is brought against the decision of the Lord Ordinary on 31 March 2010 to dismiss the petition. The respondent has also lodged cross grounds of appeal.

The statutory framework
Organisation and structure of the new Tribunals system

[2] The 2007 Act gathers into a unified structure disparate jurisdictions previously exercised by a large number of statutory tribunals throughout the United Kingdom (see R(on the application of Cart and others)) v The Upper Tribunal and The Special Immigration Appeals Commission [2010] 2 WLR 1012 (hereinafter "Cart"), per Laws LJ at paras 9-16). It provides for a comprehensive two-tier structure, comprising a First-tier Tribunal (section 3(1)) and an Upper Tribunal (section 3(2)), both of which are presided over by the Senior President of Tribunals (section 2(1) and 3(4)). All Court of Session judges and sheriffs and all (with minor exceptions) judges of the Court of Appeal, High Court and County Court, as well as Circuit and District judges, are, ex officio, judges of both the First-tier and the Upper Tribunal (sections 5(1)(g) and (6)). The Act sets out extensive categories of other persons who may sit as judges of the Upper Tribunal, including former Senior Immigration Judges (section 5(1)(d)(ii)) and Social Security Commissioners (section 5(1)(e) and (f)). The Upper Tribunal also includes a wide range of members who are not legally qualified (section 5(2)). The Upper Tribunal sits in a number of different places throughout the
United Kingdom and has an office in Edinburgh. Wherever it sits it has the power to decide cases arising under the law of any part of the United Kingdom (section 26). Counsel for the respondent indicated that, while not expressly provided for in the Act, it is anticipated that issues of Scots law will normally be determined by judges qualified in Scots law, either sitting alone or as part of a two or three judge panel.


[3] The Lord Chancellor has the power to bring into the new tribunal system the functions of tribunals in existence before the Act came into force (section 30(1) and Schedule 6). With certain exceptions, the functions of a tribunal cannot be so transferred if, or to the extent that, the provision conferring the function would be within the legislative competence of the Scottish Parliament ("a devolved matter" - section 30(5)(a)). Both the First-tier Tribunal and the Upper Tribunal are organised into chambers by the Lord Chancellor, with the concurrence of the Senior President of Tribunals (section 7). Each Chamber is itself headed by a President. The First-tier Tribunal is presently organised into six Chambers, not all of which have jurisdiction in
Scotland; the jurisdictions of the War Pensions and Armed Forces Compensation Chamber and the Health, Education and Social Care Chamber do not extend to Scotland at all. The General Regulatory Chamber exercises jurisdiction in Scotland in relation to some, but not all, of its functions. The jurisdictions of the Social Entitlement, the Tax, and the Immigration and Asylum Chambers extend to Scotland in their entirety. The General Regulatory Chamber was established in September 2009 and deals with matters formerly dealt with by the Consumer Credit Appeals Tribunal, the Estate Agents Appeals Panel, the Transport Tribunal, and, since January 2010, the Gambling Appeals Tribunal, the Information Tribunal and the Immigration Services Tribunal. The Social Entitlement Chamber was established in November 2008 and deals with matters formerly dealt with by the Asylum Support Tribunal, the Social Security and Child Support Appeal Tribunals and the Criminal Injuries Compensation Panel. The Tax Chamber was established in April 2009 and deals with matters formerly dealt with by the General and the Special Commissioners of Income Tax, the VAT and Duties Tribunal, and Tribunals under sections 704 and 706 of the Taxes Act. The Immigration and Asylum Chamber was established in February 2010 and deals with matters formerly dealt with by the Asylum and Immigration Tribunal.


[4] The Upper Tribunal is divided into four chambers: the Administrative Appeals Chamber; the Tax and Chancery Chamber; the Lands Chamber; and the Immigration and Asylum Chamber. The jurisdiction of the Lands Chamber does not extend to
Scotland. The Administrative Appeals Chamber was established in November 2008 and, in Scotland, deals with matters formerly dealt with by the Social Security and Child Support Commissioners and some matters formerly dealt with by the Transport Tribunal (from September 2009) and the Information Tribunal (from January 2010). It also deals with appeals from the First-tier Tribunal General Regulatory Chamber and the Pension Appeals Tribunal (Scotland), the latter being the equivalent jurisdiction in Scotland of the War Pensions and Armed Forces Compensation Chamber. The Tax and Chancery Chamber was established in April 2009 and deals with onward appeals from the First-tier Tax Chamber and some complex first instance appeals. Since April 2010 it has also dealt with matters formerly dealt with by the Financial Services and Markets Tribunal and the Pensions Regulator Tribunal. The Immigration and Asylum Chamber was established in February 2010 and deals with matters formerly dealt with by the Asylum and Immigration Tribunal.


[5] The reclaimer's appeal against the refusal of her disability living allowance claim was initially made to the Social Security Appeals Tribunal, which, by the time it came to be heard, had become part of the First-tier Social Entitlement Chamber. Her appeal therefore lay to the Administrative Appeals Chamber of the Upper Tribunal. There are at present two full-time judges of that Chamber sitting in Scotland (Judge May, Q.C., and Judge Gamble), both of whom are qualified in Scots law, as well as four part-time judges, three of whom are qualified in Scots law, the other (qualified in English law) having previously sat in Scotland as a full-time Social Security Commissioner. A number of Court of Session judges have been assigned to particular chambers of the Upper Tribunal.

Review and appeal of Tribunal decisions
[6] Subject to any Tribunal Procedure Rules, both the First-tier Tribunal (section 9) and the Upper Tribunal (section 10) may, on their own initiative or on the application of a party, review their own decisions made in any case, other than "excluded" decisions (defined in section 13(8)). In addition, the Upper Tribunal determines appeals on points of law from the First-tier Tribunal (sections 11-12). This right of appeal may be exercised only with permission, which may be given either by the First-tier Tribunal (section 11(4)(a)) or the Upper Tribunal (section 11(4)(b)). On hearing such an appeal the Upper Tribunal has relatively wide powers as set out in section 12. If it considers that an error of law has been made by the First-tier Tribunal, it may set aside the relevant decision and, if it does so, must either remit the case to the First-tier Tribunal with directions for its reconsideration or remake the decision itself.


[7] There is also a right of appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision (section 13(1)). Included in the definition of "excluded decisions" are decisions of the Upper Tribunal refusing leave to appeal to it from a decision of the First-tier Tribunal (section 13(8)(c)). There is therefore no right of appeal to the Court of Session or other appellate court from a decision of the First-tier Tribunal and the Upper Tribunal refusing leave to appeal, as in the present case. It is for the Upper Tribunal to determine which court is the relevant appellate court (section 13(11)). As with an appeal to the Upper Tribunal, permission is required for an appeal from it to the relevant appellate court (section 13(3)). Such permission may be given by the Upper Tribunal or by the relevant appellate court (section 13(4)). Where permission is sought from the Court of Session it is not to be granted unless the court considers that either the proposed appeal would raise some important point of principle or practice or there is some other compelling reason for the court to hear the appeal (Rule of Court 41.59).

Judicial review jurisdiction
[8] The Upper Tribunal also exercises a judicial review jurisdiction in both
England and Wales (sections 15-19) and Scotland (sections 20-21). In cases arising under the law of England and Wales or of Northern Ireland, it has an original jurisdiction for judicial review. In exercising that original jurisdiction the Upper Tribunal must be presided over by a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, a judge of the Court of Session, or such other person as may be agreed from time to time between 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. In England and Wales, an application for judicial review requires leave of the Upper Tribunal. A refusal of leave may be appealed to the Court of Appeal, which may go on to decide the judicial review application. The Upper Tribunal must apply the same principles as would be applied by the High Court when considering an application to it for judicial review and any relief granted by it in the exercise of its jurisdiction has the same effect, and is enforceable in the same way, as if granted by that court. There are also similar provisions regarding the transfer of judicial review applications from the High Court in England and Wales and Northern Ireland to the Upper Tribunal as those outlined below in relation to the Court of Session. There is no requirement as regards the standing of the persons hearing the application on such transfers.


[9] In cases arising under Scots law, the Upper Tribunal does not have an original judicial review jurisdiction. Instead, there is provision for both mandatory or discretionary transfers of judicial review petitions to it from the Court of Session (section  20(1)). In either case, there can be no transfer where the subject-matter of the application for judicial review is a devolved matter (section 20(1), (4) - "condition 3" - and (6)). The subject-matter of an application will be a devolved matter if it concerns the exercise of functions in or as regards Scotland, and does not relate to a reserved matter within the meaning of the Scotland Act 1998 (section 20(7)). Otherwise, where the application does not seek anything other than an exercise of the supervisory jurisdiction ("condition
1") and does not call into question a decision under the Immigration and Nationality Acts ("condition 4"), the Court of Session must transfer the application to the Upper Tribunal where the application falls within a class specified by an act of sederunt ("condition 2"), and may transfer the application where it does not. At present, only one act of sederunt has been made in relation to condition 2: Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008 SSI 2008/357, by which applications which challenge "a procedural decision or a procedural ruling of the First tier-Tribunal" must be transferred to the Upper Tribunal. That has been held to include procedural omissions or oversights giving rise to unfairness (Currie, Petitioner 2010 SLT 71, per Lord Hodge at para [6]). In exercising its judicial review jurisdiction, the Upper Tribunal is expressly given the same powers of review as the Court of Session in the exercise of its supervisory jurisdiction (section 21(1)). Again, in deciding the application it must apply the same principles as that court would apply in such an application (section 20(3)). An order made by the Upper Tribunal in deciding such an application has the same effect as the corresponding order granted by the Court of Session in its supervisory capacity and is enforceable as such (section 20(4)). There is no requirement that a judge from the Court of Session must preside over the Upper Tribunal in any judicial review application, although, again, counsel for the respondent indicated that it was anticipated that they would be determined by Scottish qualified judges, and that Court of Session judges may sit by request to the Lord President from the Chamber President.

Rule making and ancillary powers
[10] The Upper Tribunal may make rules of procedure for both the First-tier Tribunal and the Upper Tribunal (section 22 and schedule 5) as well as Practice Directions (section 23). Procedural rules are made by the Tribunal Procedure Committee, which consist of the Senior President of Tribunals, or a person nominated by him, and appointees of the Lord Chancellor, the Lord Chief Justice of
England and Wales, the Lord President of the Court of Session, and the Senior President of Tribunals. Practice Directions may be given by the Senior President of Tribunals and the individual Chamber Presidents. In relation to the attendance and examination of witnesses, the production and inspection of documents and all other matters incidental to the Upper Tribunal's functions, it has the same powers, rights, privileges and authority as the High Court in England and Wales or Northern Ireland or the Court of Session (section 25). That includes, for example, the power to punish witnesses for contempt of court (Tribunal Procedure (Upper Tribunal) Rules 2008 SI 2008/2698, Rule 7). Sums payable pursuant to decisions of the First-tier Tribunal or the Upper Tribunal made in England and Wales or in Northern Ireland are recoverable as if payable under an order of the County Court or the High Court, while those made in Scotland are enforceable as if they were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland (section 27). The Upper Tribunal also has power to make rules for awarding of expenses in both the First-tier Tribunal and the Upper Tribunal proceedings (section 29; Schedule 5, para 12). Rules have been made allowing the Upper Tribunal to award expenses, whether on application or on its own initiative, in judicial review proceedings transferred to it (Tribunal Procedure (Upper Tribunal) Rules 2008 SI 2008/2698, Rule 10(3)(a)). It may also make wasted cost orders and award expenses if a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings (Rule 10(3)(c), (d)).

Discussion by the Lord Ordinary

[11] In dismissing the petition the Lord Ordinary referred extensively to Cart, adopting much of its reasoning while at the same time taking into account the different legal history and principles which applied in Scotland. Before him the respondent did not contend that the Upper Tribunal was immune from review by the Court of Session in all circumstances. Rather, following the approach in Cart, the respondent conceded that in exceptional circumstances the Upper Tribunal might be subject to such review - though no such exceptional circumstances, it was submitted, were advanced in this case. The Lord Ordinary decided that the Upper Tribunal, having been placed at the apex of a new judicial structure, should be regarded as an appeal court of general jurisdiction and that, except where there was a right of appeal under the 2007 Act, its decisions should, other than in exceptional circumstances, be regarded as final and not subject to review. However, he expressed one caveat as regards the reasoning adopted in Cart. He noted that the work brought within the new tribunal system included immigration and asylum cases, where fundamental human rights, such as the right to life and the right not to be subjected to torture, were in play (R (Sivusabramaniam) v Wandsworth County Court [2003] 1 WLR 475, per Lord Phillips of Worth Matravers, MR at para [51]-[52]; R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445, per Lord Phillips of Worth Matravers, MR at paras [19-[26]). He expressed concern about the opportunity for "anxious scrutiny" of such cases if it were held that the Upper Tribunal was immune from judicial review, save in the exceptional circumstances where it had acted outside its remit or there had been a complete breakdown in procedure so as to render a fair hearing impossible.


[12] By reference to R (Sinclair Gardens Investments (Kensington) Ltd) v Lands Tribunal [2006] 3 All ER 650 per Neuberger LJ at paras [40]-[41], he suggested that the susceptibility of the Upper Tribunal to judicial review could be decided by reference to: the nature of the tribunal; the mechanisms for review and appeals in the new structure created by the Act; the legislative intention; the need to balance the requirement for finality and a desire to achieve the right result; and the generic nature of the issues involved. If that approach were adopted, there may be situations where a review was justified only in exceptional circumstances. He suggested that that approach was a comprehensive formulation of the principles already applied in
Scotland. In particular, he suggested that the distinction between errors of law which were intra vires and those which were ultra vires of a tribunal's remit remained a central tenet of Scots law (Watt v Lord Advocate 1979 SC 120, per Lord President Emslie at page 131; cf Anisminic v Foreign Compensation Commission [1969] 2 AC 147).

Procedure in the Inner House
[13] The reclaimer reclaimed against the Lord Ordinary's interlocutor. The respondent lodged cross-grounds of appeal in which he contended - for the first time - that decisions of the Upper Tribunal were not in any circumstances amenable to the supervisory jurisdiction of the Court of Session. As this was an issue logically prior to that argued before the Lord Ordinary, the respondent, by agreement, addressed the court first.

Submissions on behalf of the respondent
[14] Mr Johnston's primary submission was that, having regard to the characteristics of the Upper Tribunal, including its constitution, jurisdiction and powers, and its relationship with the Court of Session, it should properly be regarded as having a status so closely equivalent to the latter that its decisions were not appropriately amenable to its supervisory jurisdiction. Reference was made to R v Cripps, ex parte Muldoon [1984] QB 68, per Goff LJ at page 87; Cart, per Laws LJ at paras 68-71. The Court of Session had previously refused to interfere with the decisions of various courts on a similar basis: the High Court of Justiciary (Cordiner, Petitioner 1973 JC 16, per Lord Justice General Emslie at page 18); the Lands Valuation Appeal Court (Stirling v Holm (1873) 11 Macph 480, per Lord President Inglis at page 487); the Teind Court (Earl of Campberdown v Presbytery of Auchterarder (1902)
5 F 61, per Lord Kinnear at page 69); and the Courts of the Church of Scotland in ecclesiastical matters (Wight v Presbytery of Dunkeld (1870) 8 Macph 921, per Lord Justice Clerk Moncrieff at page 925, and Lord Neaves at page 927).


[15] The essential function of the supervisory jurisdiction was to secure that the rule of law was applied. Where, as here, a tribunal constituted an authoritative, impartial and independent judicial source for the interpretation and application of relevant statutory texts, it did not require any further form of review (Cart, per Laws LJ at paras 34-39). The key features of the Upper Tribunal which supported the respondent's primary submission were: its wide and comprehensive appellate jurisdiction; its unique jurisdiction for judicial review; its position at the apex of a new comprehensive and judicial structure designed to create a single system of claims; its wide powers of practice and procedure, some of which were expressly assimilated to those of the Court of Session; and its judiciary which included, ex officio, judges of the Court of Session and which had as its Senior President a senior judge of the courts of appeal in England and Wales or Northern Ireland, or of the Court of Session (Cart, per Laws LJ at para 87 - 89).


[16] Any differences between the Upper Tribunal's relationship with the Court of Session and its relationship with the High Court in England, or in the operation of its power of judicial review in each jurisdiction, were not material and ought not to compel a different approach: there were no substantive differences in the grounds of judicial review between the jurisdictions (Brown v Hamilton District Court 1983 SC (HL) 1, per Lord Fraser of Tullybelton at page 42; West v Secretary of State for Scotland 1992 SC 385, per Lord President Hope at page 413); the Upper Tribunal was created by an Act of the United Kingdom Parliament and exercised an extensive jurisdiction throughout the United Kingdom; and the Court of Session might, in exceptional circumstances, have jurisdiction over the Upper Tribunal sitting in England and Wales (Tehrani v Secretary of State for the Home Department 2007 SC (HL) 1, per Lord Nicholls of Birkenhead at paras [21], [24] and [25]; Lord Scott of Foscote at paras [74]-[75]; and Lord Rodger of Earlsferry at paras [103] - [107]). In both jurisdictions, once the relevant court decided to transfer a case to the Upper Tribunal, it was, in that situation, truly its "alter ego" with the same powers, means of enforcement and authority.


[17] If the Court of Session did have a supervisory jurisdiction over the Upper Tribunal, its scope was extremely limited. The more supreme a tribunal, when analysed in accordance with the Muldoon test, the less the court should consider it appropriate to interfere with its decisions. The Court of Session had recognised the need for restraint in exercising its power of review where, for example, voluntary associations and non-established churches had elaborate constitutions and mechanisms to secure compliance with their rules and ordinances (Clyde and Edwards, Judicial Review, paras 9.07-9.08). It intervened only in exceptional circumstances: where the tribunal had gone beyond the sphere of its constitution and acted outwith the powers conferred on it ("ultra vires errors"); or where it committed a gross irregularity which affected the honesty and integrity of proceedings such as to deny the right to a fair hearing (McMillan v Free Church (1859) 22 D 290, per Lord President Colonsay at page 314; McDonald v Burns 1940 SC 376, per Lord Justice Clerk Aitchison at pages 383-384). Restraint had also been shown in the review of decisions of the Social Security Commissioners prior to the establishment of the Upper Tribunal, as they involved a complex and specialised area of law (Cooke v Secretary of State for Social Security [2002] 3 All ER 279, per Hale LJ at page 285; Mooney v Secretary of State for Work and Pensions 2004
SLT 1141, per Lord Brodie at para [30]; Donnelly v Advocate General for Scotland 2007 SCLR 746, per Lord Wheatley at para [13]). The changes effected by the 2007 Act, and the characteristics of the Upper Tribunal already discussed under the primary argument, now made it less appropriate or necessary for any review to take place, other than in such exceptional circumstances (Cart, per Laws LJ at para 94, 97 -100)


[18] While in England and Wales, both ultra and intra vires errors of law by an administrative tribunal were amenable to review (Anisminic Ltd v Foreign Compensation Commission [1969]
2 AC 147), it was not clear that the same applied in relation to intra vires errors of law by courts established by statute such as the Upper Tribunal (In Re Racal Communications [1981] AC 374, per Lord Diplock at page 383). Where Parliament had put in place a scheme which provided the litigant with fair, adequate and proportionate protection against the risk that a lower court may have fallen into error, judicial review against a decision refusing leave to appeal would only be available in the exceptional circumstances already outlined (R (Sivusabramaniam) v Wandsworth County Court, per Lord Phillips of Worth Matravers, MR at paras 54-56; Gregory v Turner [2003] 1 WLR 1149 per Brooke LJ at para 40 - 46; R (Sinclair Gardens Investments Ltd) v Lands Tribunal, per Neuberger LJ at paras 40-41 (a Lands Tribunal case); R (G) v Immigration Appeal Tribunal, per Lord Phillips of Worth Matravers, MR at paras 21-26; R (Strickson) v Preston County Court [2007] EWCA Civ 1132, per Laws, LJ at para 32). Given its powers and appellate procedure the Upper Tribunal could be considered as a court and was not amenable to review. The wider test suggested in Wiles v Social Security Commissioners and Another [2010] EWCA Civ 258 (per Dyson LJ at paras 45-55), was based on the longstanding practice of a supervisory jurisdiction in administrative cases prior to the 2007 Act. It was of little assistance in assessing the appropriate decision in cases which arose under the new regime, which demanded a different outcome.


[19] Moreover, in Scotland the distinction between ultra vires and intra vires errors of law in Racal also applied to statutory tribunals (Watt v Lord Advocate, per Lord President Emslie at page 128-131; O'Neill v Scottish Joint Board Negotiation Committee for Teaching Staff 1987 SC 90, per Lord Jauncey at pages 93-94; Rae v Criminal Injuries Compensation Authority 1997
SLT 291, per Lord Macfadyen at page 295; Cameron v Gibson 2006 SC 283, per Lord Kingarth at paras [14]-[18]). Watt involved a decision of the National Insurance Commissioners, the appeal functions of whom were now fulfilled by the Upper Tribunal: its reasoning was directly applicable. The Court of Session could not, therefore, review decisions which involved an error of law which was within the jurisdiction of the Upper Tribunal.


[20] However, while the Lord Ordinary had been correct to adopt the reasoning in Cart, he had been in error in suggesting that a more generous approach might be merited in certain circumstances. There was no basis for that distinction. It was inconsistent both with the aim of rationalising the tribunal system into a single system with a unified appellate structure under the 2007 Act, and with the Upper Tribunal being an authoritative impartial and independent judicial source of interpretation and application of the relevant statutory tests. If the subject-matter was within the jurisdiction which had been fixed by Parliament, the scope for judicial review should be limited to exceptional circumstances. There was nothing in the statutory scheme which suggested Parliament had intended a different approach to be applied, depending on the subject-matter.


[21] Finally, in any appeal the Upper Tribunal had the power to retake the relevant decision de novo (section 12(2) of the 2007 Act). In deciding whether to grant permission to appeal, it was therefore entitled to take into account whether any error of law identified was material. That, correctly, was a consideration taken into account by the Upper Tribunal judge in refusing permission to appeal. When the decision by the First-tier tribunal was considered as a whole, there was no realistic prospect of a successful appeal. The reclaiming motion should be refused.

Submissions on behalf of the petitioner

[22] Mr Mitchell accepted that the petitioner's case did not involve any of the "exceptional circumstances", outlined in the respondent's submissions. However if, as the petitioner submitted, the Upper Tribunal was amenable to judicial review, there was no authority for restricting its jurisdiction to exceptional grounds. Any distinction as regards private bodies in
Scotland could be explained by their contractual foundations, there being no reason why the grounds applicable to public tribunals should necessarily apply to them (cf McDonald v Burns; Diamond v PJW Enterprises Ltd 2004 SC 430). In Scotland, judicial review focused on principle, not, as in England, on remedies (West, per Lord President Hope at page 409). In Scotland a petition for judicial review was presented as of right. Mr Mitchell referred to statistics which, he submitted, provided a practical reason for this distinction: unlike Scotland, the English courts had been flooded with hopeless judicial review applications. As the Supreme Court of Scotland in civil matters, the Court of Session had a supervisory jurisdiction to review the decisions of any body to which a jurisdiction, power or authority had been delegated or entrusted by statute, agreement or other instrument, in order to ensure that it did not exceed or abuse its powers or fail to perform the duty entrusted to it (West, per Lord President Hope at pages 412-413; Tehrani). That included the Upper Tribunal. This principled approach should not be abandoned for the test outlined at first instance in Muldoon.


[23] The cases in which the Court of Session had refused to interfere fell into two categories: those involving non-civil bodies such as the High Court of Justiciary or the Church Courts in ecclesiastical matters; and those involving the Court of Session under a different name such as the Teind Court, the Registration Appeal Court, and the Lands Valuation Appeal Court. Section 2 of the Lands Valuation (
Scotland) Act 1857, specifically mentioned the "Court of Session" (see also the Valuation of Lands (Scotland) Amendment Act 1867, section 8, cited in Stirling v Holm). Its supervisory jurisdiction could only be ousted, if at all, by clear and explicit words, not by implication (Cart, per Laws LJ at paragraph 31). The decisions of the Social Security Commissioners had clearly been amenable to judicial review. There was no suggestion of an ouster in the scheme under the 2007 Act. It was not provided by the judges of the Court of Session being, ex officio, judges of the Upper Tribunal, nor by the latter's jurisdiction of judicial review which was controlled by the Court of Session through its discretion to transfer cases or its acts of sederunt. Notably, no direct application for judicial review could be made to the Upper Tribunal in Scotland.


[24] The substantive grounds for judicial review were, and ought to be, the same in Scotland and England (Brown v Hamilton District Court, per Lord Fraser of Tullybelton at page 42; Wordie Property Co v Secretary of State 1984
SLT 345, per Lord President Emslie at pages 347-348; West v Secretary of State, per Lord President Hope at pages 402, 405 and 413; Sommerville v Scottish Ministers 2007 SC 140, per Lord President Hamilton at paragraph [123]; Tehrani; Clyde & Edwards, Judicial Review, paragraphs 2.35, 14.2 and 21.32-21.33; "Public Law in Scotland", address by Lord Clyde to conference held by the Murray Stable Public Law Group, 10 November 2008, available at www.journalonline.co.uk/magazine/53-12/1005983.aspx). The obiter comments by Lord President Emslie in Watt suggesting a difference between the jurisdictions as regards the amenability to review of intra vires errors of law by tribunals had been clearly rejected in subsequent cases. An intra vires error of law did not, in any event, include a material error going to the root of the question for determination (cf. Wordie per Lord President Emslie at page 347-348).


[25] It was well settled that "intra vires" errors of law by public tribunals were amenable to judicial review (Anisminic; Racal; O'Reilly v Mackman [1983] 2 AC 237, which was decided on the same day as Brown v Hamilton District Court; R v Lord President of the Privy Council, ex parte Page 1993 AC 682; Boddington v British Transport Police 1999 2 AC 143, per Lord Irvine of Lairg, LC at pages 154 ff; Wade & Forsyth, Administrative Law, 10th Edition, pages 213-214 and 222-225). The exemption as regards courts of law was not germane to the present case. In Scotland, since at least the turn of the century, the unappealable decisions of bodies such as those forming part of the unified tribunal system were regularly reviewed for such errors (R v Secretary of State for Scotland 1999 SC (HL) 17, per Lord Clyde at pages 41-42; Elam v Secretary of State for Home Department 2004
SLT 839; Lin v Secretary of State for the Home Department 2005 SLT 301). The Lord Ordinary had erred in dismissing the petition in the absence of "ultra vires" error of law.


[26] The Upper Tribunal simply did not have the necessary attributes of a Supreme Court: the "litmus test" was that it could not exercise a supervisory jurisdiction akin to the nobile officium (Stair, Institutions, IV, 3.1-3.2; Erskine, 1.3.18 and 20; Forbes v Underwood (1886) 13R 465, per Lord President Inglis at pages 467 - 468; Brown v Hamilton District Court, per Lord Dunpark at pages 28-30; West, per Lord President Hope at pages 393-401); it could not make a declaration of incompatibility with the European Convention of Human Rights; and its decisions were appealable to the Court of Session, which would be unheard of were it a Supreme Court. (The House of Lords sat as the (or a) Court of Session when dealing with Scottish appeals - Elphinstone v Campbell (1787) 3 Pat.77, per Thurlow LC at page 83; Dewar v McKinnon (1825) 1 W&S 161, per Eldon LC at page 167). It was the Upper Tribunal's function, not its membership, which determined its amenability to judicial review (Cart, per Laws LJ at paragraph 82; West, per Lord President Hope at page 400). In any event, those who sat regularly were not judges of the Court of Session and could not derive immunity from review by association. While its current Senior President was a Lord Justice of Appeal, only seven years' membership of the legal profession was required (2007 Act, Schedule 1, paragraph 3). Albeit wide, its jurisdiction was still limited. The amenability to review of its own judicial review decisions did not arise in the present case. In any event, in practice such decisions were appealable on a point of law (section 13(1)), permission being granted by either the Upper Tribunal or, importantly, the Court of Session.


[27] The respondent's submissions, if accepted, also had important constitutional implications. They removed a necessary attribute of the Court of Session, namely the power to provide a remedy for all wrongs (Erskine, Institutes, I.iii 23), and placed what might otherwise be viewed as an inferior tribunal beyond its control. If the Upper Tribunal were not amenable to judicial review, it left a lacuna in the law as regards clear irregularities, such as bias, which could be addressed only by a nobile officium. They also suggested that cases in Scotland might be cognisable in what was, in substance, a Court in Westminster Hall, raising question of compatibility with Article XIX of the Treaty of Union: the Upper Tribunal was based in London and its membership was predominantly composed of English lawyers; its procedural committee included only one Scots lawyer and its procedural rules were drafted without Scottish assistance; English judicial reviews were to be heard by English High Court judges (section 18), but no equivalent provision existed as regards Scottish cases; the Senior President of the Tribunals had suggested that judicial reviews would normally be heard by English judges and that urgent business would be heard by the Queen's Bench Division of the English High Court (Second Implementation Review, October 2008, Annex 3, paragraphs 12 and 13); the selection process for the appointment of the Senior President of the Tribunal was controlled by the Lord Chief Justice in England, with no equality between the jurisdictions in the procedure (Schedule 1); and the Senior President of the Tribunal had now suggested that appeals from the Upper Tribunal might go directly to the Supreme Court ("Tribunal Reform - The Scottish Dimension", speech by Carnwath LJ, Signet Library, Edinburgh, 11 February 2009 paragraph 29 - 35). There were proposals to merge the Tribunal Service with the
English Court Service. The more recent proposals for a possible merger of the tribunal services in Scotland with the Scottish Court Service simply suggested that the respondent's submissions were based on matters which were still in flux.


[28] The respondent's alternative argument relied on two pillars: a revived submission that the Upper Tribunal was a Supreme Court, and an argument founded on proportionality. The first pillar having been removed, for the reasons already given, Scots law did not recognise a continuing distinction between ultra vires and intra vires errors of law in the grounds for judicial review of inferior tribunals. The only authority from this century relied on was Cameron v Gibson. It referred to Wade & Forsyth, Judicial Review, 9th Edition, which itself made clear that, post-Anisminic, all errors of law were reviewable (pages 254 and 264). The second pillar was based on English authorities concerning leave to appeal for judicial review and other concepts and procedures having no application in
Scotland, where there was a different understanding of the balance of power between the citizen and the state. In any event, on the facts of the present case judicial review would not be disproportionate. The petitioner had in effect had only "two bites at the cherry": firstly in applying to the First-tier Tribunal for leave to appeal, and then in applying to the Upper Tribunal itself. In neither application did she have access to legal representation or advice of any kind.


[29] The reclaiming motion should be allowed and the case remitted to the Outer House for further procedure to consider whether there had been an error of law in the First-tier Tribunal's consideration of the case.

Response by Mr Johnston

[30] Mr Johnston submitted that the dictum of the Lord President in Watt had not been expressly departed from and remained the law of Scotland (Stair Memorial Encyclopaedia, Reissue Vol 1, Administrative Law, para 45).


[31] The Upper Tribunal was a
United Kingdom body, not an English court sitting in Westminster Hall, such as had been anticipated by the Treaty of Union. In any event, Article XIX did allow for some alterations in the Court of Session if it was "for the better Administration of Justice". The material referred to in that regard did not further the petitioner's argument: the speech by Carnwath LJ clearly expressed his own view, and not that of the Tribunal Service; no decision had been made on restructuring of the tribunal administration; and some of the material concerned England and Wales only and could not provide a basis for suggesting that Scottish cases might be subsumed into the English jurisdiction. The manner in which urgent business was dealt with was not a current concern in the Administrative Appeals Chamber and did not assist the argument. What was of importance was what the statute actually said, rather than any concerns about what might arise in the future.


[32] The respondent's submissions were not solely based on the case of Muldoon, but also on the Scottish cases where the Court of Session had declined to exercise the supervisory jurisdiction. Moreover, it was common sense that, in order to assess the status of a court, one had to look at its composition and powers. If the
Registration Appeal Court was simply the Court of Session under another name it would not have been necessary to read down the Human Rights Act to allow it to make a declaration of incompatibility (Smith v Scott 2007 SC 345). The constitution of the Lands Valuation Appeal Court was decided by act of sederunt and it had other characteristics which would not have been necessary were it simply the Court of Session (Stirling v Holm, per Lord President Inglis at page 487).


[33] It was not clear why cases involving private, as opposed to public, tribunals should involve different principles (cf McDonald v Burns). That distinction was not fundamental to Scots law as regards the susceptibility of a body to judicial review (West). In any event, the principle in Anisminic did not apply to courts of any kind (Racal). That included the Upper Tribunal. The "exceptional circumstances" test was shaped by the authorities and principle, not the volume of business in a particular tribunal. Moreover, it was not accurate to say that the petitioner had only had "two bites of the cherry": she had firstly applied to the Secretary of State; thereafter to the First-tier tribunal, resulting in a re-hearing of her case; and it was only then that she had made her two applications for leave to appeal. It was also of note that the petitioner had been assisted by Glasgow City Council in her application for leave to appeal, even if there had been no legal aid. The respondent's cross-appeal should be allowed and the petitioner's reclaiming motion refused.

Discussion - Origins of the Supervisory Jurisdiction

[34] In West
v Secretary of State for Scotland Lord President Hope, at pages 393-4, traced the early history of the supervisory jurisdiction of the Court of Session, with particular reference to the possible significance of the abolition of the Scots Privy Council in 1708. The discussion suggests that, prior to that date, the Court of Session did not exercise such a jurisdiction. That suggestion now appears to be doubtful. The Court of Session, as reconstituted by the College of Justice Act in 1532, first sat on 27 May of that year. On 15 July it granted an order against the Prior of St. Andrews requiring him to desist from certain proceedings on the ground of partiality ((1532) A.D.C.S. 43 - Stair Society Vol. 14). Dr A. M. Godfrey in Civil Justice in Renaissance Scotland (2009) at pages 211-218 recounts a series of cases, some before and others shortly after 1532 in which "the Session exercised supervisory jurisdiction". There are also reports of cases in the seventeenth century in which the Court can be seen to be exercising supervisory jurisdiction over inferior judicatories. These include Jerviswood v Livingston (1632) M. 7408 (sheriff court), Earl of Roxburgh v A Minister (1663) M. 7328 (plantation commissioners), Miller v Crawford (1671) M. 7293 (bailie court) and Procurator Fiscal of Glasgow v Cowan (1677) M. 7486 (Commissary of Glasgow). See also Stair - Institutions of the Law of Scotland IV.3.1 - discussing the nobile officium of the Court of Session. It would, accordingly, seem that Lord Dunpark was correct when he said in Brown v Hamilton District Council at page 28:

"...[The power of the Court of Session to quash decisions of inferior courts] stems, in my opinion, from the foundation of the College of Justice in 1532 to take over the judicial duties of the King's Council."

It seems, however, that the Scots Privy Council, while it continued to exist, was the body to which some processes of a supervisory nature were appropriately directed (see Alexander v Sheriff of Inverness (1696) M. 7413).

The Nature of the Jurisdiction

[35] It seems clear that the supervisory jurisdiction was and is regarded as an exercise of the nobile officium, that is, of the Court's broad equitable jurisdiction (Clyde and Edwards - Judicial Review para. 2.08).
Scotland has never had separate courts of law and equity; the Court of Session exercised and exercises both functions. While the jurisdiction is equitable, and so there might have developed a doctrine that leave of the court was required to present any application of that kind, no such doctrine was in the event developed. This contrasts with the position in England and Wales where leave was required for the presentation of prerogative writs (Order 53) and is now required for applications for judicial review (Civil Procedure Rules, rule 54(4)). There may, however, be some measure of judicial control in the Court of Session in that, as applications for judicial review are now required to be made by petition (RC 58.3), the Lord Ordinary may be able immediately to prevent an application going further - by refusing to grant a first order. This seems to have been done only where the application was manifestly without substance (unless the respondent was also represented so that the position of both parties was explored); and there is currently pending before the Inner House a reclaiming motion which challenges the power of the Lord Ordinary to refuse such an order even in these circumstances (EY and PST v Secretary of State for the Home Department ([2009] CSOH 100)). There has a been a suggestion that the law be changed to require leave for an application for judicial review (Civil Courts Review, Chapter 12, paras. 40-54).

The bodies reviewable


[36] Erskine - Institute I:III:20, having described the universal jurisdiction of the Court of Session in civil matters, continues:

"The jurisdiction of the Court of Session is also supreme as to degree. For, first, That court can set aside or suspend the sentences of all inferior courts in civil causes, unless where that power is denied to them by special statute. 2dly, They can review their own sentences, under the limitation contained in 1672, c.16, and the others explained below ...: not only interlocutory sentences upon reclaiming bill by the party aggrieved, but definitive (after sentence pronounced, and even extracted) by way of suspension or reduction. 3dly, Their sentences are subject to the review of no court but the House of Lords, that high court of appeal, which is common to both parts of the united kingdom."

In Moss' Empires v Assessor for Glasgow 1917 SC (HL) 1 Lord Kinnear, at page 6, observed:

"Wherever any inferior tribunal or any administrative body has exceeded the powers conferred upon it by statute to the prejudice of the subject, the jurisdiction of the [Court of Session] to set aside such excess of power as incompetent and illegal is not open to dispute."

The bodies not reviewable

[37] Lord Kinnear goes on to acknowledge that the Court of Session has no jurisdiction to interfere with the decisions of certain courts in
Scotland, these being themselves "supreme tribunals". He mentions the Valuation Appeal Court (now known as the Lands Valuation Appeal Court), the High Court of Justiciary and the Court of Teinds. He might also have mentioned the Courts of the Church of Scotland which have exclusive, sometimes described as "supreme", jurisdiction in spiritual and ecclesiastical matters (Wight v Presbytery of Dunkeld, especially per Lord Justice Clerk Moncrieff, Lord Cowan and Lord Benholme - see also Sturrock v Greig (1849 11 D. 1220, per Lord Justice Clerk Hope at pages 1231-2).


[38] It is not difficult to see why the Court of Session, whose jurisdiction is to "sit and decide upon all civil actions" (
College of Justice Act, 1532), should have no jurisdiction in criminal matters (Cordiner, Petitioner, per Lord Justice General Emslie at page 18). The dualism of civil and criminal jurisdictions can readily be appreciated. The exclusive jurisdiction of the Established Church in matters spiritual is also well established (see Church of Scotland Act 1921, Schedule, Art IV; Percy v Church of Scotland 2006 SC (HL) 1). The special status of each of the Lands Valuation Appeal Court and of the Teind Court turns on its respective statutory basis. Section 2 of the Valuation of Lands (Scotland) Act 1857 (which is side-noted "Appeal to Court of Session") provided that two judges of that Court (the senior Lord Ordinary and the Lord Ordinary officiating in Exchequer causes) were the persons to whom valuation appeals were to lie. Section 8 of the Valuation of Lands (Scotland) Act 1867 amended section 2 of the 1857 Act to provide that the appellate body should be "any two judges in [the Court of Session], who shall be named for that purpose ...". It continued:

"Provided always, that any valuation which shall have been confirmed or altered in conformity with the opinion of the said judges shall thereafter be final and not subject to review in any manner of way."

It was in that context that Lord President Inglis said of these judges in Stirling & Sons v Holm and Others at page 487:

"I think these two Judges sitting under this statute are just as much a Supreme Court as we are sitting here, that their jurisdiction is absolutely privative, and that no other Judge or Court in the realm can interfere with questions under the Valuation Act, or rather, I should more properly say, with questions relating to valuations. It is to these two Judges, and to nobody else, that the whole jurisdiction in this matter is committed; and I think we have no jurisdiction to interfere with the way in which they conduct their business."

A similar observation was made about the Teind Court by Lord Kinnear in Earl of Camperdown v Presbytery of Auchterarder at page 69, where the statute in question conferred an appellate jurisdiction on the Lord Ordinary on Teind Causes and provided that his judgment was to be final.


[39] It may be questionable whether it is appropriate to describe courts which have under statute a privative and final jurisdiction as "Supreme Courts" in the same sense as the Court of Session is in
Scotland the Supreme Court in civil matters. Parliament can provide that a court or tribunal is to have a privative jurisdiction and that its decision is final without conferring on it the status of a Supreme Court or Tribunal. But it is, in our view, significant that, in the cases of each of the Lands Valuation Appeal Court and the Teind Court, the appellate body was constituted exclusively by judges (or a judge) of the Court of Session. Accordingly, in a real sense these courts might be regarded as so closely related to the Court of Session as to warrant the description of being "supreme". A similar approach may be detected in Smith v Scott 2007 S.C. 345 in relation to what is popularly known as the "Registration Appeal Court" - though this is technically constituted by three judges of the Court of Session appointed for the purpose (Representation of the People Act 1983, section 57(2)).

Judicial control

[40] In
Moss' Empires v Assessor for Glasgow Lord Shaw of Dunfermline at page 11 expressed his view on jurisdiction as follows:

"It is within the jurisdiction of the Court of Session to keep inferior judicatories and administrative bodies right, in the sense of compelling them to keep within the limits of their statutory powers or of compelling them to obey those conditions without the fulfilment of which they have no powers whatsoever. It is within the power of the Court of Session to do that, but it is not within the power or function of the Court of Session itself to do work set by the Legislature to be performed by those administrative bodies or inferior judicatories themselves."


[41] This limited function of the Court of Session in the exercise of its supervisory jurisdiction had long been recognised. Its jurisdiction was not to review the decisions of the inferior judicatories on their merits but "to determine what it is that falls within their powers" (Magistrates of Perth v Trustees on the Road from Queensferry to Perth (1756) (Kilkerran's Notes on Brown's Supplement Vol. 5 318 at page 319), cited with approval by Lord Fraser of Tullybelton in Brown v Hamilton District Council at page 42. That is, it was a jurisdiction to control the due exercise of vires by the inferior judicatories. As Lord President Hope said in West v Secretary of State for Scotland at page 395:

"... one can see here, even at the very earliest stages of its development, the emergence of a clearly defined principle that, where an excess or abuse of the power or jurisdiction conferred on a decision-maker is alleged, the Court of Session, in the exercise of its functions as the supreme court, has the power to correct it." (See also at pages 397 and 402.)


[42] This might appear to draw a clear distinction between a jurisdiction to correct errors which went to the vires of the inferior judicatory and the absence of a jurisdiction to correct errors which did not. It is, against the historical background explained by Lord Hope, perhaps unsurprising that a few years earlier Lord President Emslie in Watt v Lord Advocate at page 131 had opined, albeit obiter:

"... it seems clear that, however much this is to be regretted, the Court of Session has never had power to correct an intra vires error of law made by a statutory tribunal or authority exercising statutory jurisdiction."

That view was expressed in a case in which Anisminic v Foreign Compensation Commissioner had been cited and discussed.

English development

[43] But in the English courts Anisminic came to be interpreted and applied in a way which does not, on its face, appear to sit easily with Lord President Emslie's observation in Watt. In In re Racal Communications Limited Lord Diplock said at pages 382-3:

"In Anisminic [1969] 2 A.C. 147 this House was concerned only with decisions of administrative tribunals. Nothing I say is intended to detract from the breadth of the scope of application to administrative tribunals of the principles laid down in that case. It is a legal landmark; it has made possible the rapid development in England of a rational and comprehensive system of administrative law on the foundation of the concept of ultra vires. It proceeds on the presumption that where Parliament confers on an administrative tribunal or authority, as distinct from a court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined: and if there has been any doubt as to what that question is, this is a matter for courts of law to resolve in fulfilment of their constitutional role as interpreters of the written law and expounders of the common law and rules of equity.

So if the administrative tribunal or authority have asked themselves the wrong question and answered that, they have done something that the Act does not empower them to do and their decision is a nullity. Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so."

Thus, in the case of administrative tribunals or administrative authorities, the scope of judicial review in England and Wales ordinarily extends to the correction of errors of law whether "ultra vires" or "intra vires" (see also O'Reilly v Mackman). The distinction in that context became unimportant; all errors of law by such tribunals or authorities were "ultra vires".

The grounds of review in Scotland

[44] Judgment in O'Reilly was delivered on
25 November 1982. On the same day an identically constituted Appellate Committee of the House of Lords gave judgment in Brown v Hamilton District Council. The leading speech was delivered by Lord Fraser of Tullybelton. At page 42 he said:

"It is not necessary for me to consider the grounds on which judicial review may be open. The decisions in the English cases of Associated Provincial Pictures Houses Limited v Wednesbury Corporation [1948] 1 KB 223, and Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C. 147, so far as they related to matters of substance and not of procedure, are accepted as being applicable in Scotland, see Watt v Lord Advocate 1979 S.C. 102. There is no difference of substance between the laws of the two countries on this matter ..."


[45] The grounds on which judicial review might be open in
Scotland were not in issue in Brown. Notwithstanding the obiter nature of Lord Fraser's comment, it has come to be received wisdom that there is no difference of substance between the laws of England and those of Scotland in regard to the grounds on which judicial review may be open (West v Secretary of State for Scotland, per Lord President Hope at page 402 and page 405, referring to Lord Fraser in Brown). In Somerville v Scottish Ministers the First Division at para. [123] observed that submissions "as to the desirability of maintaining the situation that the grounds of review are broadly the same in all jurisdictions in the United Kingdom are, in our view, compelling." The wide range of the grounds on which judicial review may be available in Scotland is explained by Lord Clyde in R v Secretary of State for Scotland at pp. 41-2.


[46] The present case is not - at least at this stage - concerned with whether relevant grounds have been advanced for challenge of the decision of the Upper Tribunal. It is concerned with whether that Tribunal is a body whose actings are subject to review by the Court of Session under its supervisory jurisdiction - essentially a matter of competency. The danger of confusing issues of the relevancy of grounds of review with the competency of proceedings was warned against by Lord President Hope in West at page 405. But developments in England since Anisminic (as, for example, in Council for the Civil Service Unions v Minister for Civil Service [1985] AC 374) may have consequences for Scotland including whether, in the case of an administrative tribunal or authority, an error of law of any kind, at least if going to the root of the decision in question, amounts in effect to acting ultra vires. Thus, certain observations in the Outer House (in O'Neill v Scottish Joint Board Negotiation Committee for Teaching Staff and in Rae v Criminal Injuries Compensation Board) may require reconsideration. We do not see the observations by the court in Cameron v Gibson as inhibiting such reconsideration. It has been suggested (
Clyde and Edwards - Judicial Review, para. 22.22) that Lord President Emslie's observations may have been too widely framed. The developments referred to at paras [43] to [45] above suggest that there may be force in that suggestion but it is strictly unnecessary for the purposes of this reclaiming motion to resolve that issue. It is sufficient to notice that, in light of these developments, the scope of what is a reviewable decision of an administrative tribunal or authority may be enlarged.

The status of the Upper Tribunal

[47] The issue of competency in this case is concerned with whether the Upper Tribunal is "an inferior judicatory" in the sense used by Lord Shaw in Moss' Empires v Assessor for Glasgow. In our view it is - for the following reasons. A statutory right of appeal lies, with leave, from the Upper Tribunal to the Court of Session. That is a clear indicator that the former is, in the relevant sense, inferior to the latter. The circumstance that the Upper Tribunal may in some circumstances by statute exercise a judicial review function does not affect the general relationship between the Court and the Tribunal. In
Scotland the Tribunal has that function only if conferred on it by mandatory or discretionary transfer from the Court of Session. It may be - and it is unnecessary to express any concluded view on this question - that a decision by the Upper Tribunal in exercise of that transferred function would not itself be amenable to judicial review in the Court of Session. But on the assumption that that is so, that is no reason why, when not exercising that function (as it was not in the present case), it should be immune from such review. Pace Laws LJ in Cart at para 94 we do not see why the Upper Tribunal while discharging one of its functions should not be reviewable, but when exercising another be reviewable. While the distinction between a court and a tribunal may not always be clear, a distinguishing feature between them in Scotland is that in civil matters, courts are, in general, constituted exclusively by professional judges, while tribunals will commonly include lay members. There may, of course, be exceptions. The Upper Tribunal includes lay members. While all judges of the Court of Session are by virtue of that office judges of the Upper Tribunal (as they are likewise of the First-Tier Tribunal (section 6)), neither Tribunal is constituted exclusively by such judges; so far as concerns Scotland, sheriffs and transferred-in judges, amongst others, are also judges of both. The issues which fall to be addressed by the Upper Tribunal are issues which were formerly addressed by bodies (such as the Social Security Commissioners, the Value Added Tax and Duties Tribunal, the General and the Special Commissioners of Income Tax and the Asylum and Immigration Tribunal) which, if exercising jurisdiction in Scotland, were undoubtedly subject to judicial review in the Court of Session. It is clearly in our view, a tribunal, not a court. While by section 25 of the 2007 Act the Upper Tribunal has in relation to certain matters the same powers, rights, privileges and authority as the Court of Session, it does not have other attributes of that Court, such as its nobile officium. The Act makes no express provision which either excludes judicial review in the Court of Session or confers on the Upper Tribunal a standing equivalent to that of that Court.

The "appropriateness" test

[48] Reliance was placed by the respondent on certain observations made by Robert Goff LJ (as he then was), sitting with Mann J in the Divisional Court, in R v Cripps, ex parte Muldoon. The Divisional Court was there concerned with whether an election court constituted under the Representation of the People Act 1949 (in that case in respect of a local election) was, for the purposes of judicial review in the High Court, to be regarded as an "inferior court". Robert Goff LJ examined a number of English authorities, and one from the Privy Council, in which issues had arisen as to whether the court, or tribunal, was superior (and accordingly not subject to review by the High Court) or inferior (and so subject). In that regard he noticed that certain courts (the Courts - Martial Appeal Court and the Restrictive Practices Court) were each under the relative statute a "superior court of record" - an expression which, while used likewise in respect of the Upper Tribunal (section 3(5)), has, it was accepted, no legal significance in Scotland.


[49] While the approach adopted by Robert Goff LJ has much to commend it in terms of legal reasoning, some caution should, in our view, be exercised in relying too readily on analyses which proceed upon considerations of judicial review in the High Court of England and Wales and not of the supervisory jurisdiction of the Court of Session in Scotland. The history of each jurisdiction is quite different.


[50] Robert Goff LJ observed that it was difficult to extract any precise principle from the cases examined. He continued at page 87:

"The most that can be said is that it is necessary to look at all the relevant features of the tribunal in question, including its constitution, jurisdiction and powers and its relationship with the High Court in order to decide whether the tribunal should properly be regarded as inferior to the High Court, so that its activities may appropriately be the subject of judicial review by the High Court."

He added that:

".... there is an underlying policy in the case of tribunals of limited jurisdiction, whether limited by area, subject matter or otherwise, that, unless the tribunal in question should properly be regarded in all the circumstances as having a status so closely equivalent to the High Court that the exercise of power of judicial review by the High Court is for that reason inappropriate, it is in the public interest that remedies by way of judicial review should be available to persons aggrieved."


[51] The notion of "appropriateness" has not featured in any of the Scottish decisions concerned with whether a particular court, or tribunal, is subject to the supervisory jurisdiction of the Court of Session - though it has to be said that, likewise, no precise principle can be extracted from the relevant decisions. However, the exclusion of the Court of Session from judicial review in the High Court of Justiciary and vice versa can be seen as based on the parallel but wholly independent jurisdictions of these courts (Cordiner, Petitioner at page 18). Analogous reasoning may underlie the exclusion from review of courts of the Established Church dealing with spiritual matters. As earlier explained, the position of the
Lands Valuation Appeal Court and of the Teind Court turns on the terms of their constituent statutes. As regards the Teind Court, it is noticeable that in Earl of Camperdown v Presbytery of Auchterarder the Lord Ordinary (Lord Kyllachy) observed at page 64:

"The Lord Ordinary on Teinds is in fact a member of the Supreme Court, and by the statute the appeal lies to him in that character. It is thus in substance an appeal to a department of the Supreme Court ..."

It thus appears that in Scotland the only civil courts which the Court of Session has regarded as not amenable to its supervisory jurisdiction are courts which are in effect manifestations of itself. Against that background it would, in our view, not be right to exclude from judicial review on the ground of "inappropriateness" a court or tribunal other than one which was, or was akin to, such a manifestation. The Upper Tribunal, albeit it has a wide and comprehensive jurisdiction in its specialist fields and is at the apex of the tribunal structure in those fields, is clearly not such a manifestation. It can not, to adopt the Latinity of Laws LJ in Cart, be regarded in Scotland as "for relevant purposes, an alter ego of" [the Court of Session].


[52] It is worth adding at this point that the range of the bodies subject to the supervisory jurisdiction of the Court of Session is significantly wider than those subject to judicial review in the High Court of England and
Wales. In Scotland there is not in this field any limitation of the jurisdiction to public bodies; it extends, for example, to private arbiters (Forbes v Underwood), to non-established religious bodies (McDonald v Burns) and to other associations (St Johnstone Football Club Limited v Scottish Football Association 1965 SLT 171)). The scope of the jurisdiction is thus wide-ranging.


[53] As earlier noticed, an application for judicial review in
England and Wales requires leave; an application to the supervisory jurisdiction of the Court of Session does not. The requirement of leave may reflect a discretionary element in the former jurisdiction. In Cart Laws LJ observed at para 98:

"The nature of the judicial review jurisdiction owned by the High Court has an elusive quality, because its limits are (generally) set by itself. In consequence, the distinction between a legal place where the jurisdiction cannot go, and a legal place where as a matter of discretion the High Court will not send it, is permeable: even unprincipled. Ultimately, the court is simply concerned to give the jurisdiction the reach, or edge, which the rule of law requires."

Conclusion on the respondents' first contention

[54] No question of discretion applies to the Court of Session's jurisdiction. While that jurisdiction may also be said to rely on the rule of law, the jurisdictional rule in
Scotland points to an exclusion only where the subject body is a manifestation of the Court of Session itself or akin to such a manifestation. For the reasons we have given the Upper Tribunal does not have that character. In these circumstances the respondent's contention that the Court of Session has no jurisdiction in any circumstances to review a decision of the Upper Tribunal must be rejected.

The respondent's alternative contention

[55] The respondent's alternative contention was that the Upper Tribunal was subject to such review only in exceptional circumstances. This was the only contention advanced on his behalf before the Lord Ordinary. The Lord Ordinary found in the respondent's favour. In doing so, while recognising that there were significant differences - historical and otherwise - between Scotland and England and Wales, he was influenced to some extent (see para [76]) by the reasoning of Laws LJ in Cart, where such exceptional cases were drawn very narrowly - namely, where it was clear from the context that there had been "a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal" (Cart, para 99). It is not suggested that the reclaimer's case falls within such a narrow category.


[56] In advancing this alternative submission before us Mr Johnston cited McDonald v Burns. That case was concerned with a determination by the Sacred Congregation of Religious at
Rome dismissing certain sisters of a Roman Catholic order from a convent in Scotland. An action to enforce that dismissal was brought against the sisters by the trustees of the convent and the Scottish representatives of the order. The sisters in response challenged the competency and regularity of their dismissal. In the course of this opinion Lord Justice Clerk Aitchison at page 383 posed the question -

"In what circumstances, then, will the Courts entertain actions arising out of the judgments of ecclesiastical bodies?"

He answered it as follows:

"Speaking generally, in either of two situations - (First) where the religious association through its agencies has acted clearly and demonstrably beyond its own constitution, and in a manner calculated to affect the civil rights and patrimonial interests of any of its members, and (Second) where, although acting within its constitution, the procedure of its judicial or quasi - judicial tribunals has been marked by gross irregularity, such fundamental irregularity as would, in the case of an ordinary civil tribunal, be sufficient to vitiate the proceedings. But a mere irregularity in procedure is not enough. It must be so fundamental an irregularity that it goes beyond a mere matter of procedure and becomes something so prejudicial to a fair and impartial investigation of the question to be decided as to amount to a denial of natural justice, as, for example, if the conviction of an ecclesiastical offence were to take place without an accusation being made, or without allowing the person accused to be heard in his defence. In short, the irregularity alleged must not be simply a point of form, or a departure from prescribed regulation, but must go to the honesty and integrity of the proceedings complained of." (pages 383-4).


[57] In referring to "an ordinary civil tribunal" the Lord Justice Clerk may have had in mind, amongst other bodies, private arbiters. Such persons, even where questions of law may at common law be remitted to them for their exclusive determination (Brown v Associated Fireclay Companies 1937 SC (HL) 42), must observe the rules of natural justice (Holmes Oil Co v Pumpherston Oil Co (1891) 18 R (HL) 32; Black v John Williams and Co (Wishaw) 1923 SC 510). In the case of non-established religious associations the court has recognised that they have what Lord McLaren in Skerret v Oliver (1896) 23 R 468 at page 491 described as a "qualified privilege", namely, "that their proceedings are protected from review in the same degree as proceedings of arbiters are protected". The "privilege" appears, in part at least, to arise because the complainer has voluntarily submitted himself to the exclusive jurisdiction in question (McDonald v Burns, per Lord Justice Clerk Aitchison at page 382). In such circumstances the scope of review is restricted to that described by the Lord Justice Clerk at pages 383-4.


[58] That reasoning does not apply to statutory decision-makers (cf. Diamond v PJW Enterprises Limited). While it will be appropriate in addressing any challenge to a decision of a specialist tribunal to show proper respect for its expertise or, as it was put in Mooney v Secretary of State for Work and Pensions at page 1151, "to take a modest line", that does not entail that the tribunal will, as a matter of the court's jurisdiction, be immune from review; rather it assumes that it will be amenable to it.


[59] In R (Sivusubramaniam) v Wandsworth County Council the Court of Appeal had to address in what circumstances judicial review would lie against the refusal of a circuit judge to grant permission to appeal to him from a decision of a district judge. The court noticed (at paras 50-52) the special position of the Immigration Appeal Tribunal and distinguished it from that of the circuit judge (paras 53-56). In the latter case it held that the arrangements put in place by Parliament for reviewing the merits of decisions made by district judges were such that it was "not appropriate" that there should be further review of these by the High Court - albeit that Parliament had not (expressly) legislated to remove such a jurisdiction. It was, however, acknowledged that judicial review would lie in exceptional circumstances - on the ground of jurisdictional error in the narrow, pre Anismimic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant's right to a fair trial.


[60] This appears to be another case (like Muldoon's case before it and R (Sinclair Gardens (Kensington Limited) v Lands Tribunal, R (Strickson) v Preston County Court and, perhaps, Cart since) in which the English courts have set the parameters of judicial review by reference to the appropriateness of such review as a feature of the general administration of justice. What is the appropriate scope of what is reviewable may not always have been consistently applied in these courts - see the somewhat different approach adopted by the Court of Appeal in Wiles v Social Security Commissioner. That last mentioned case is also notable for the observations by Sedley LJ at para 82 that "The time has long gone when the floodgates argument can properly be advanced on jurisdictional issues of public law". Although it may be expressed as a matter of law, it involves, on the face of it, essentially a delimitation by the English courts on policy grounds of the circumstances in which the High Court will entertain judicial review. In
Scotland, by contrast, the right of the citizen to invoke the jurisdiction of the Court of Session to control the actings of statutory bodies has never been circumscribed on discretionary or similar grounds (see Tehrani v Secretary of State for the Home Department, per Lord Hope of Craighead at para [53]). If Parliament wishes to exclude or restrict the supervisory jurisdiction of the Court of Session in particular circumstances, then it should legislate expressly to that effect. We reserve our opinion as to whether, regard being had to inter alia Article XIX of the Union with England Act 1707, such legislation would be constitutional.

Asylum and Immigration cases

[61] It should be noted that the Lord Ordinary, while holding that in general the decisions of the Upper Tribunal were not amenable to the supervisory jurisdiction of the Court of Session other than in exceptional circumstances, was concerned about one aspect, namely, that of asylum and immigration cases - see in particular paras [79] - [82]. Neither party before us supported any distinction between decisions of the Upper Tribunal in such cases and decisions otherwise. We are not satisfied that, for the purposes of the availability or not of judicial review, any such distinction can properly be made. However, the Lord Ordinary's concerns about the need for anxious scrutiny (perhaps by the senior judiciary) in such cases tends to confirm that the supervisory jurisdiction of the Court of Session should not be elided or restricted other than by express legislation to that effect.


[62] In these circumstances the respondent's alternative contention fails.

Other matters

[63] We have found it unnecessary to address certain of the contentions advanced on behalf of the reclaimer - including one founded on Article XIX of the
Union with England Act 1707. As regards that last mentioned contention, we would only observe that the Upper Tribunal does not appear to us to be a "Court in Westminster-hall" within the intendment of Article XIX; it is, as constituted by the 2007 Act, a United Kingdom tribunal.

Disposal

[64] We shall accordingly allow the reclaiming motion, refuse the cross-appeal and remit to the Lord Ordinary to proceed as accords.

Coda

[65] When this Opinion was in draft there became available the judgment of the Court of Appeal in Cart ([2010] EWCA Civ 859). We note that that court rejected the suggestion that the Upper Tribunal was "an avatar of the High Court" (para 19). We also note that, in coming to its view that the grounds of review of a decision of the Upper Tribunal were restricted to the extent there decided, it held that the scope of the jurisdiction was necessarily a matter of law, or of legal or judicial policy (paras 27-8). It does not follow that the ultimate result should be the same for the Court of Session, regard being had to the history and nature of the supervisory jurisdiction in this court.


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