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Tribunal merger may 'dilute rather than enhance' expertise, Lady Hale warns

27 June 2011

Lady Hale has warned of a risk that the merger of tribunals under the Courts and Enforcement Act 2007 and “amalgamation of very different jurisdictions in the new chambers will dilute rather than enhance the specialist expertise of their judges and members”.

She went on: “Mental health and special educational needs, for example, are similar in some ways but very different in others.

“It would be difficult to say that bringing them together has reduced the capacity for error although of course we all hope that it has not been increased.”

Her comments came in a Supreme Court judgment setting a new and more generous test for judicial reviews against decisions of the Upper Tribunal.

The Court of Appeal ruled in R (on the application of Cart) v the Upper Tribunal [2010] EWCA Civ 859 that judicial reviews should be limited to “exceptional cases”.

However, the Supreme Court decided last week that the test used should be the same as the one to determine whether appeals should be allowed from the First-tier Tribunal, or any other court, to the Court of Appeal.

Lady Hale said courts were “very used” to applying this test, which covers both appeals raising important points of principle and practice and those where there is “some other compelling reason” for further consideration.

Giving the leading judgment in R (on the application of MR (Pakistan)) and others v the Upper Tribunal [2011] UKSC 28, Lady Hale said the Court of Appeal in Cart had done “little justice” to the independence of the old tribunal system and overestimated what had changed in the new.

Lady Hale said no system of decision making was “perfect or infallible” and there was always the possibility that a “judge at any level” would get it wrong.

“Clearly there should always be the possibility that another judge can look at the case and check for error.”

She said adopting the new test would be a “rational and proportionate restriction upon the availability of judicial review”.

Lady Hale said her approach meant that the Civil Procedure Rules committee might want to consider the scope for “streamlining” procedure.

“I agree with Lord Phillips that it would be totally disproportionate to allow the four-stage system of paper and oral applications to both the High Court and the Court of Appeal in such cases.”

She dismissed the appeals in MR and in Cart, but on a different basis from that adopted by the lower courts.

Lords Phillips, Brown, Dyson and Clarke agreed for their own reasons. Lords Hope and Rodger agreed without giving reasons.

Eric Metcalfe, director of human rights policy at JUSTICE, said the ruling had reinforced the longstanding common law power of the courts to review administrative decisions.

“Despite the government’s best efforts to restrict its scope, the Supreme Court has reaffirmed the importance of judicial review as an essential part of the rule of law.

“With any luck, the Supreme Court’s ruling will also end parliamentary attempts to immunise the decisions of administrative tribunals from further review.”

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