Supreme Court for the 'Superior Court'?

Governments generally appear unable to resist tampering with the justice system. The introduction of a unified tribunal system through the Tribunals, Courts and Enforcement Act 2007 (TCEA) which, broadly speaking gathered together a large number of tribunals and appeal processes under one roof, and then formulated common rules to govern them, has at least the surface virtue of simplifying and codifying the law. The various tribunals were gathered together in six 'chambers'1 of the First-tier Tribunal ('FTT') which have their own specific rules and judges at the first tier stage. The new system continues to add to its responsibilities; it has recently subsumed the former Asylum and Immigration Tribunal (now the Immigration and Asylum Chamber) and a Lands Chamber has taken over the functions of the former Lands Tribunal The FTT has an overarching appeal body – the Upper Tribunal ('UT'), which is also intended to have certain of the High Court's powers of judicial review. This Upper Tribunal was designated a 'superior court of record' and besides its own appointed judiciary has (in England and Wales) Lords Justices, High Court Justices, circuit judges and district judges as ex officio members. This new structure raised the question – to what extent does judicial review lie against the UT?

The Divisional Court, and now the Court of Appeal have considered this question in the case of Cart2. Both have concluded that judicial review does not generally lie, and have restricted recourse to the High Court to cases where either the UT acts beyond its jurisdiction, by for example hearing a case it had no power to entertain, or there has been a gross and flagrant denial of justice. A 'denial of justice' in this sense does not mean a decision that is wrong in law, but rather an extreme example of disruption of the judicial process itself, such as for example a hearing conducted by a judge with a pecuniary interest in the outcome. It is clear that the Courts expect few, if any, challenges to be declared admissible, and that decisions of the UT will be the final word other than where there is an onward right of appeal to the Court of Appeal.

These issues are of immense constitutional importance. Not only do they deal with the future functioning of the new tribunal system, but they also consider whether and to what extent parliament can trammel the powers of the High Court. It may be recalled that the attempt to exclude judicial review from immigration...

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