The unified tribunal system, implemented through the Tribunals, Courts and Enforcement Act 2007, came into being on 1 April 2009. The new structure consists of a first tier tribunal and an upper tier tribunal. In a decision issued on 10 September 2010, the Court of Session ruled that the Upper Tribunal is a body subject to judicial review by the Court of Session.
Lord President Hamilton, sitting with Lords Kingarth and Brodie, ruled that the fact that the Upper Tribunal had its own judicial review jurisdiction in certain situations did not prevent it from being subject to review by the Court of Session. They took the view that it is possible for the Upper Tribunal to be subject to judicial review in relation to the exercise of some of its' functions even if not in relation to others.
This ruling has been made in an appeal against the decision of Lord Gennie in a petition for judicial review by Blajosse Charlotte Eba  CSOH 45. The petitioner had failed in her claim against the dismissal of her claim for disability living allowance before the First Tier Tribunal. She sought permission to appeal to the Upper Tribunal, which was refused by both the First and Upper Tribunal. The petitioner sought judicial review of those decisions, but principally the decision of the Upper Tribunal. In dismissing the petition, Lord Glennie said that he considered that this type of decision by the Upper Tribunal was only subject to review in exceptional circumstances or because there had been a breakdown of fair procedures. He considered that the petitioner had not pled a case sufficient to bring this into the restricted right of review, and, therefore, the petition should be dismissed. In effect, the Upper Tribunal should be regarded as an appeal court of general jurisdiction, having equivalent status to that of the Court of Session, and, subject to the right of appeal to the Court of Appeal or the Inner House, its decisions should generally be regarded as final and not subject to review.
Delivering the decision of the Inner House, Lord President Hamilton stated that in deciding the issue of the competency of a judicial review challenge to a decision of the Upper Tribunal, the Court must examine whether the Upper Tribunal is "an inferior judicatory". He said, "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. ... The [Tribunals, Courts and Enforcement] 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.". On the question of whether the , he stated, "In Scotland, ...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 ). 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."
This clear indication that the exercise of the supervisory function of the Court of Session is not lost to the jurisdiction of the new Tribunal system will be welcomed by many commentators who are concerned about any erosion of the independence of the Scottish Courts.
To view the full decision please click here: http://www.scotcourts.gov.uk/opinions/2010CSIH78.html
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