By Alison L Young
Sir David Williams Professor of Public Law, University of Cambridge
The Judicial Review and Courts Bill 2021 was introduced in response, in part, to the Independent Review on Administrative Law (IRAL). In introduces two reforms designed to improve judicial review.
This explainer will look at the first reform – the removal of Cart judicial review.
What is Cart judicial review?
In order to understand Cart judicial review, we need to understand a little about the tribunal system. Like courts, tribunals hear complaints from individuals about administrative decisions. Tribunals sit in panels, which include a legally qualified tribunal judge, as well as members who have specific expertise in the subject matter of the particular tribunal. Tribunals can hear evidence and make determinations, drawing on their legal and specialist expertise. In Cart, for example, Mr Cart had appeared before a Tribunal to challenge a decision of the Child Support Agency, seeking a revision of the amount he would need to pay in child maintenance.
Just like in the court system, there is a hierarchy of tribunals – the First-tier Tribunal and the Upper Tribunal. The Upper Tribunal can hear appeals from decisions of the First-tier Tribunal. However, the appeal is not automatic. The Upper Tribunal has to grant permission to appear a decision of the First-tier Tribunal.
Mr Cart’s appeal before the First-tier Tribunal failed. He sought an appeal of that decision to the Upper Tribunal. However, the Upper Tribunal refused to grant him permission to appeal. Mr Cart then sought judicial review of the decision of the Upper Tribunal to refuse to grant him permission to appeal the decision of the first-tier tribunal.
In R (Cart) v Upper Tribunal, the Supreme Court decided that it was possible for courts to review decisions of the Upper Tribunal to refuse to allow an appeal from a decision of the First-tier tribunal. However, this was only in limited circumstances. A court would review a decision of the Upper Tribunal to refuse to hear an appeal from the First-tier tribunal when it is arguable, with a reasonable chance of success, that legal errors have been made by either the First-tier Tribunal or the Upper Tribunal. Moreover, the case must raise an important point of principle practice, or there must be other compelling reasons for the court to hear the case. These are the same criteria that the courts use when determining whether to hear an appeal from other second-tier jurisdictions (the Upper Tribunal is an example of a second-tier jurisdiction – it hears appeals from a tribunal which is lower in the hierarchy between tribunals). This is known as Cart judicial review.
Why get rid of Cart judicial review?
The Independent Review of Administrative Law (IRAL) concluded that Cart judicial review was only successful in a very small amount of cases. Consequently, the review concluded that the cost of hearing Cart judicial reviews outweighed the value of allowing this form of judicial review.
There have been criticisms of the calculations used to justify this conclusion, which suggest that Cart judicial reviews may be more successful than IRAL concluded. Also, it is important to realise that Cart judicial reviews will not succeed frequently, given the difficulty of meeting the criteria required for a Cart judicial review. Also, arguably, Cart judicial reviews are needed to ensure that potential mistakes are corrected, particularly given that immigration decisions and social security decisions are determined be tribunals. These areas of the law involve considerations of human rights, as well as ensuring that welfare benefits are provided to those in need.
On the other hand, the decision in Cart itself has been criticised. The First-tier tribunal has already heard one appeal from a decision of an administrative body. The Upper Tribunal has already looked at the decision of the First-tier Tribunal to decide whether an error has been made and appeal needs to take place. Do we really need a further possibility of judicial review, particularly given that there are members of the judiciary on both the First-tier and the Upper Tribunal? Does allowing a further appeal undermine access to the courts, as too much time is taken up by examining these appeals that rarely succeed – time that could be spent judging more deserving cases?
These arguments engage different aspects of the rule of law. Allowing Cart judicial reviews upholds the rule of law as it ensures that the courts can hold tribunals to account, correcting any legal errors and helping to ensure that the law is interpreted consistently across many different First-tier tribunals. However, they may also undermine the rule of law if this prevents access to the courts.
The Judicial Review and Courts Bill 2021
The Bill is currently being debated in the House of Commons. Currently, clause 2 of the Bill will remove Cart judicial reviews. However, it does not completely remove the ability of the court to review a decision of the Upper Tribunal to refuse to grant an appeal from a decision of the First-tier Tribunal. Judicial review will be possible in the following situations:
- To determine whether there was a valid application to the Upper Tribunal
- To determine whether the Upper Tribunal was properly constituted
- To determine whether the Upper Tribunal was acting in bad faith
- To determine whether the Upper Tribunal had committed a fundamental breach of the principles of natural justice
This provides for a narrower set of circumstances for when courts can review these decisions of the Upper Tribunal than occurs through the application of Cart judicial review.
A lot of the concerns about this provision of the Judicial Review and Courts Bill are because, in order to remove Cart judicial review, the Bill contains an ouster clause. Ouster clauses remove the ability of courts to review a decision of the administration. Ouster clauses are seen as problematic as they undermine the rule of law. They stop courts from being able to prevent administrative bodies from acting unlawfully. This means that courts tend to interpret ouster clauses narrowly, in order to minimise their impact on the rule of law. However, an ouster clause is also an expression of the will of Parliament. If courts interpret these clauses too narrowly, does that mean that they are undermining parliamentary Sovereignty by contradicting the will of Parliament?
It is not easy to answer this question. As with most things in constitutional law – it depends on the context. It is more justifiable to remove judicial review over a decision of a judicially-composed body than it is to remove judicial review of a member of the administration or the Government whose actions are not otherwise checked by a judicially-composed body. A judicially-composed body is more able to perform a check over an administrative body in order to uphold the rule of law.
The ouster clause to remove Cart judicial reviews may be less controversial, particularly as the clause still preserves a check over the decisions of the Upper Tribunal. However, the danger still remains that the same wording may be used to remove judicial review in more controversial cases. The question then would be whether courts would be able to uphold the rule of law and parliamentary sovereignty, or whether courts would be forced to choose which of these constitutional principles was the most important.