New restrictions on judicial review from the Supreme Court

27 June 2011

Eba v Advocate General for Scotland [2011] UKSC 29 is an important case about the scope of judicial review in Scotland. 

The case is about judicial review of unappealable decisions of the Upper Tribunal under the Tribunals, Courts and  Enforcement Act 2007 ("2007 Act") but its implications extend beyond those types of cases.  In brief, the Supreme Court decides:

1.       Judicial review of unappealable decisions of the Upper Tribunal will only lie where the case either raises an important point of principle or practice OR there is some other compelling reason to hear it (like the decision being plainly wrong, perverse, or there not having been a fair hearing at all due to a procedural irregularity).  The 2007 Act does not say this anywhere, but the court was prepared to read in the test to achieve a balance between the rule of law and finality in decision making.  Lord Hope found support for his approach in the principle of judicial restraint in relation to specialist decision making and from a provision in the Rules of Court about the test for bringing appeals to the Court of Session from 2007 Act tribunals.  The approach was seen by the Supreme Court as an appropriate 'tailoring of grounds of review'. 

2.       This position is the same in England and Scotland (two English cases were heard at the same time as Eba; Cart and MR).  The grounds of judicial review remain the same in Scotland and England despite differences in other aspects of judicial review between the two jurisdictions. 

3.       The position of the many specialist tribunals operating in Scotland not within the 2007 Act structure (principally devolved tribunals, because the 2007 Act structure does not generally speaking extend beyond reserved tribunals) was not directly before the court.  But Lord Hope said that there is no good reason why the same approach should not apply to all specialist tribunals.

4.       The question of whether an application for judicial review of a tribunal decision meets the 'important point of principle or practice or some other compelling reason' test should be capable of being determined as a point of relevancy certainly at the first hearing if not before.   It is up to the Court of Session as to how this is to be done in practice, but the court drops a strong hint that a first orders hearing may be the place to do it. (A leave stage has been recommended by the Gill review and this perhaps pre-empts implementation of that recommendation in an administrative justice context, at least for 2007 Act judicial reviews).  In that connection the court says that the test for refusal of first orders in such cases set out in EY v Secretary of State 2011 SLT 508 will need to be revisited; Lady Smith's first instance decision in EY (rejected by the Inner House as too strict) is said to have much to commend it. 

5.       The dicta in Watt v Lord Advocate 1979 SC 120 about errors of law within and without jurisdiction are formally overruled.  The Court of Session has powers to correct both intra vires and ultra vires errors of law in applications for judicial review.  

David Johnston QC of Axiom acted on behalf of the Advocate General.  James Mure QC and Anna Poole of Axiom acted on behalf of the Lord Advocate.