The Judicial Review and Courts Act 2022 is an unusual example of Parliament reversing the decision of the UK’s Supreme Court. The controversy began when the Supreme Court in Cart in 2011 allowed a judicial review of an Upper Tribunal decision when the Upper Tribunal refused to allow an appeal against a decision reached by a First Tier Tribunal. The Cart case (known as Cart JRs) was a complex case involving the question of the role of judicial review. The Supreme Court held that the High Court powers to review a refusal by the Upper Tribunal were retained, notwithstanding the grant of powers to the Upper Tribunal for a judicial review, were equivalent to the powers of the Administrative Court, part of the High Court. The case was criticised as an example of the Supreme Court interpreting the law beyond what Parliament had intended.
Introduction: Setting the Context
The United Kingdom’s constitutional arrangements have long been characterised as an example of “continuity and change”: an unwritten constitution that developed pragmatically and adjusted to social, economic and political changes. This was characterised as a flexible constitution with an ability to blend the ancient with the modern and impress the world with its solidity and predictability. The bedrock of the constitution is found in the rule of law, the sovereignty of Parliament and the delicate balance of the separation of powers doctrine which accepted the independence of the judiciary despite the ultimate sovereignty of Parliament. In many respects these characteristics remain, however the seismic shock waves of Brexit, Covid and the Ukraine war have exposed hidden fragilities that make the constitution more volatile and changeable than previously thought possible. Particularly problematic is the role of judicial review which has raised the question of the jurisdiction and scope of the courts.
The decision to leave the EU (Brexit) after a referendum in 2016, created a new constitutional order. It is clear that the post Brexit arrangements had not been well considered with much detail remaining to be worked out, not least the future relationship with the EU. Even now, this relationship and notably the Northern Ireland Agreement are being re-fashioned and re-modelled under the Windsor Framework.
The role of the judiciary has come under close scrutiny by the government. The context for the Cart decision and its review must be considered within the context of the Government’s criticism of judicial review in general. The government were highly critical of judicial decisions, particularly those that centred around Brexit. The Government’s use of prerogative powers, particularly the Government’s attempts to prorogue Parliament through the application of the prerogative rather than the use of primary legislation was a particular focus of conflicting opinions. There has been a long history of criticism of the role of judicial review in asylum cases and the use of challenges over Covid powers and government policy making. Judicial “overreach” was claimed by senior ministers who complained that judicial review, the means to challenge the legality of government decisions, had been expanded too widely. The Human Rights Act 1998 was also a target for criticism. This led to an independent review of the workings of the Act. The Strasbourg Court of Human Rights was also criticised and any remaining role, or even influence, of the European Court of Justice (the Luxembourg Court) rejected after the UK left the EU. Many of the sceptics about judicial review argue that appointed judges should not be able to usurp elected politicians and the sovereign role of Parliament. It is likely that the discussion about the role of judicial review will continue into the foreseeable future.
The government established an Independent Review of Administrative Law (IRAL), under the chair of Lord Faulks KC in July 2020. The terms of reference included considering trends in judicial review and particularly the use of judicial review to challenge any policy or decisions made by the government. The question of balance between the role of the Executive and the role of the judiciary was also considered. The IRAL conducted a large call for evidence and its report was published on 18th March 2021, a remarkably short time. The IRAL was not asked to look at the Cart decision but the question of Cart was raised in evidence to the review.
The IRAL did not find much evidence of judicial overreach. However one of the main recommendations was to overturn the decision of the UK Supreme Court in Cart. The reasoning behind the IRAL’s recommendation to reverse the Cart decision is discussed below.
The starting point is to explain the UK’s system of allocating certain kinds of disputes to tribunals which consider facts and interpret the law. Tribunals are an important part of the system of administrative justice. The jurisdiction of the tribunal system is wide ranging and includes taxation as well as immigration and asylum. The Leggatt Committee in 2001 recommended wide reforms and re-organisation. The reforms may be found in the Tribunals, Courts and Enforcement Act 2007. The reforms consisted of the creation of a first-tier tribunal system composed of seven different chambers. This consists of the War Pensions and Armed Forces Chamber, and a Chamber for General Regulatory Matters, a Health Education and Social Care Chamber, a Social Entitlement Chamber, a Tax Chamber, the Immigration and Asylum Chamber and a Property Chamber. Above the first-tier tribunal there is an Upper Tribunal for appeals. It is divided into four chambers: The Administrative Appeals Chamber, the Tax and Chancery Chamber, the Immigration Appeals Tribunal and the Lands chamber.
The aim of the reforms was to integrate the system of tribunals into the court system creating a single system of justice. In 2016 this much was acknowledged and in 2020 tribunal chairs were recognised as judges in the same way as the ordinary courts system. Thus all judges were expected to have a coherent approach to justice and share the same systems and procedures. Without the existence of tribunals the system of justice would break down as the already busy County Court could not cope easily with any additional workload, that would result in the absence of tribunals. Figures for 2019/20 show that 2,0292,258 claims are made in the county courts. A breakdown of the work– load of tribunals reveals that the immigration chamber received 41, 895 cases, over 10% of tribunal cases, a significant number.
One feature of the tribunal system is the highly technical and specialist nature of each of the chambers. This is reflected in the judges and their role, gained through case law experience built up over many years of knowledge and expertise in areas of great technical complexity.
The immigration tribunal operates in a highly sensitive area of political debate exacerbated by the Brexit sense that the UK should be able to control its own borders, determine its own immigration policy and set rules for asylum seekers. It is noteworthy that reforms included the grant of judicial review powers to the upper tribunals to consider the legality or otherwise of lower tribunal decisions. This was an unusual extension of powers, but the result was to allow the Upper Tribunal similar powers of judicial review to the High Court. This avoided costs, delays and difficulties of mounting a judicial review to the High Court.
The UK Supreme Court was asked in the Cart case whether a refusal to appeal by the Upper Tribunal was amenable to the supervisory jurisdiction of the High Court. The Supreme Court agreed that such a process existed and subsequently judicial review in those circumstances became known as a CartJR. The number of such claims has proven to be large, although the success rate is relatively low.
The IRAL gave particular attention to Cart JRs which it identified as problematic as the number of Cart JR are significant. Data from 2015-2019 estimate that CartJRs run at about 779 applications per year amounting to about 20% of all judicial reviews, a significant number in terms of judicial time and costs. The IRAL claimed that CartJRs enjoyed very limited success of only 0.22%. Immigration and detention cases form a large bulk of the cases. This includes asylum and human trafficking. CartJRs to be successful require that applicants must justify that there is an arguable case with a reasonable prospect of success. There also has to be a finding that both the lower-tier and upper-tier tribunals were wrong in law. Research undertaken for the IRAL by the Home Office of only 0.22% showed that very few cases were successful in establishing an error of law. In such rare cases the IRAL concluded:
We have concluded that the continued expenditure of judicial resources on considering applications for a Cart JR cannot be defended and that the practice of making and considering such applications should be discontinued (§3.46 IRAL Review).
The Government published its own responses to the findings of the IRAL and entered a further period of consultation. Significantly, the figures for CartJR applications were revised upwards from 0.22 per cent found in the IRAL Review to 3.4% found after further research was undertaken by the Home Office in July 2021, after the IRAL report was published. The IRAL highlighted reform of the CartJR as an important step forward in reducing the number of applications for judicial review and thereby eradicating a contentious area for judicial review, saving public money and court time.
Section 2 of the 2022 Act took forward the reforms advocated by the IRAL through the process of excluding review of Upper Tribunal’s refusal to appeal decisions. In substance this marks a reversal of the Cart JR application process. The Government implemented the IRAL Review’s recommendation that the funding of CartJR reviews was not a proportionate use of public funds. The government and the IRAL based their assumption that there was a small number of successful Cart JR cases.
The question arises as to whether such a statutory intervention overruling a decision of the Supreme Court can ever be justified? The Government’s main justification is rooted in the influence of the principle of the proportionality of expenditure of resources allocated to Cart type decisions. Cost effectiveness arguments based on the need for public expenditure to be fully justified are frequently used in the allocation of public money for the administration of justice, especially during a time of limited resources. In Cart, the Supreme Court did give attention to the question of the impact of their decision on public spending. The Supreme Court wanted to preserve the inherent jurisdiction of the High Court to grant judicial review. This cautious approach was based on waiting to see how the reformed tribunal system worked in practice. Practically speaking, the decision in Cart was an attempt to forestall any unforeseen eventualities that might emerge. The decision in Cart was about maintaining the High Court’s overarching general jurisdiction to grant judicial review, including the Upper Tribunal.
The critical question is how accurate were the IRAL figure of few successful Cart JRs decisions of only 0.22% and the revised Home Office figure of a successful rate of 3.4%? Mikolaj Barczentewicz, in an important article on the Judicial Review and Courts Act 2022 in the Modern Law Review expresses some concerns about the statistical data relied upon by the IRAL and by the Government. This raises a more general question of the reliability of empirical research into judicial review decisions. This in turn questions the transparency of the statistical date, its collection, availability and its presentation. The government’s claim that the success rate of non-CartJR cases was in the range of 40% to 50%, as the basis of comparison to Cart JR cases. In this field of statistical data there is a major challenge for public law scholars is to have access to all the data. The IRAL report was undertaken under a tight time schedule and their figures were largely based on Home Office research provided to the IRAL. The revised figures offered by the Government were based on a further review of the data by the Home Office. Accessing all the data largely depends on the Home Office’s willingness to allow independent research. Understandably, there are limitations due to costs on how much time might be spent in assessing and finding accurate data such as how unsuccessful cases are recorded and how many were the subject of some form of settlement.
Mikolaj Barczentewicz found that the more likely estimate is 9.2 per cent of positive outcomes rather than the IRAL’s estimate of 0.22 per cent of positive results. (p.1382)” The claim is that the government did not adequately assess the number of settlements and this may make their overall figures unreliable. He concluded:
I conclude that there is insufficient evidence for the claim that Cart challenges are disproportionately costly compared to other claims for judicial review (p. 1383).
There are reasonable concerns that the important decision to end CartJRs may be based on assumptions based on the Home Office data. The need for more empirical research is clearly established. Better official data and access to resources for independent researchers to probe and published in peer-reviewed outlets are essential.
The Cart JR decision is illustrative of the technical detail needed to fully assess the significance of a decision. Statutory intervention under the 2022 Act raises concerns. It is rare for the legislature to overrule a Supreme Court decision or attempt to reverse its effects. It is not in doubt that the UK Parliament has the necessary legal powers to do so. However, statutory intervention should be carefully made and needs to be based on reliable data, which is supported by sound empirical methods and is verified through independent research. There were many ways for the government to address the data issues. An independent statistical research analysis could have been commissioned and subjected to verification. The National Audit Office might have been tasked with assessing the cost benefits of mainstream judicial review and the use of Cart JR applications. The cost to the public purse is an important and vital question that needs to be addressed. The issues raised by Cart JR applications are often brought by the most vulnerable in society and their rights and safeguarding should not be ignored.
Value for money is an important part of the audit system to ensure that taxpayers are protected and that the government spends money wisely. Data sets and statistical information is important but the value of justice is hard to quantify in that way. A society is best judged not only on the value for money that may come from public spending but also on the question of society’s humanitarian approach to suffering and vulnerability. Asylum seeking is a category where the vulnerable are most at risk. How we respond to humanitarian issues defines are humanity and the kind of society we are.