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OUTER HOUSE, COURT OF SESSION
[2023] CSOH 93
P1018/22
OPINION OF LORD RICHARDSON
In the Petition of
SOOY (FE/LA)
Petitioner
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioner: Winter; Drummond Miller LLP
Respondent: Pirie KC; Office of the Advocate General
14 December 2023
Introduction
[1]
The petitioner is a citizen of Nigeria. He entered the UK on 17 August 2004 as a
visitor. He had a valid visa to enter the UK.
[2]
On 4 March 2019, the petitioner made a human rights claim in application for leave
to remain in the UK. That application was refused by the respondent on 21 April 2021.
Thereafter, the petitioner appealed that refusal to the First-tier Tribunal. By decision dated
23 December 2021, the First-tier Tribunal refused the petitioner's appeal. The petitioner then
made an application to the First-tier Tribunal for permission to appeal to the Upper
2
Tribunal. This was refused on 6 June 2022. The petitioner then sought permission to appeal
from the Upper Tribunal. That application was refused on 5 September 2022.
[3]
In the present proceedings, the petitioner seeks judicial review of the Upper
Tribunal's decision. The respondent submits that such judicial review is incompetent
standing the terms of section 11A of the Tribunals, Courts and Enforcement Act 2007 which
came into force on 14 July 2022. Section 11A was introduced into the 2007 Act by section 2
of the Judicial Review and Courts Act 2022. For present purposes, section 11A provides as
follows:
"11A - Finality of decisions by Upper Tribunal about permission to appeal
(1) Subsections (2) and (3) apply in relation to a decision by the Upper Tribunal to
refuse permission (or leave) to appeal further to an application under
section 11(4)(b).
(2) The decision is final, and not liable to be questioned or set aside in any other
court.
(3) In particular--
(a) the Upper Tribunal is not to be regarded as having exceeded its powers by
reason of any error made in reaching the decision;
(b) the supervisory jurisdiction does not extend to, and no application or
petition for judicial review may be made or brought in relation to, the
decision.
(4) Subsections (2) and (3) do not apply so far as the decision involves or gives rise to
any question as to whether--
(a) the Upper Tribunal has or had a valid application before it under
section 11(4)(b),
(b) the Upper Tribunal is or was properly constituted for the purpose of
dealing with the application, or
(c) the Upper Tribunal is acting or has acted--
(i) in bad faith, or
3
(ii) in such a procedurally defective way as amounts to a fundamental
breach of the principles of natural justice.
(5) Subsections (2) and (3) do not apply so far as provision giving the First-tier
Tribunal jurisdiction to make the first-instance decision could (if the Tribunal did not
already have that jurisdiction) be made by--
(a) an Act of the Scottish Parliament, or
(b) an Act of the Northern Ireland Assembly the Bill for which would not
require the consent of the Secretary of State.
[...]
(7) In this section--
`decision' includes any purported decision;
`first-instance decision' means the decision in relation to which permission (or
leave) to appeal is being sought under section 11(4)(b);
`the supervisory jurisdiction' means the supervisory jurisdiction of--
(a) the High Court, in England and Wales or Northern Ireland, or
(b) the Court of Session, in Scotland"
[4]
There is no dispute in the present case that the provisions of section 11A(2) and (3)
are applicable. Accordingly, in these proceedings, essentially as a preliminary step, the
petitioner seeks declarator that section 11A of the 2007 Act is unlawful and, separately, null
and void. Thereafter, on the basis that it is competent, the petitioner seeks reduction of the
Upper Tribunal's decision dated 5 September 2022.
[5]
At the outset of the hearing before me, senior counsel for the respondent made clear
that the petition was only contested on the question of competency. While the underlying
merits of the petition were not conceded, no opposition to them was advanced by the
respondent.
4
Petitioner's submissions
[6]
The petitioner seeks declarator that section 11A of the 2007 Act is unlawful on two
grounds:
First, the power to regulate judicial review procedure in Scotland is a
devolved matter.
Second, in any event, the court ought not to give effect to section 11A of the
2007 Act on the grounds that it is not consistent with the rule of law. The rule of law
requires judicial review. The courts have the constitutional function of determining
and securing what the rule of law requires.
[7]
Prior to and in the documents submitted in advance of the hearing, the petitioner
also advanced an argument that the statutory instrument which brought section 11A into
force regulation 3(b) of the Criminal Justice Act 2003 (Commencement No 34) and Judicial
Review and Courts Act 2022 (Commencement No 1) Regulations 2022 (SI 2022
No. 816) - was ultra vires, unlawful and null and void. However, in oral submissions before
me, counsel for the petitioner advised that this argument was no longer insisted upon.
The petitioner's first argument
[8]
The petitioner's first argument can be stated shortly. Judicial review was a devolved
matter in Scotland on the basis that it was not reserved in terms of Schedule 5 of the
Scotland Act 1998. Counsel recognised that paragraph B6 of Part II of Schedule 5 provided
as follows:
"B6. Immigration and nationality
Nationality; immigration, including asylum and the status and capacity of persons in
the United Kingdom who are not British citizens; free movement of persons within
the European Economic Area; issue of travel documents."
5
However, he submitted that this provision did not encompass permission for the UK
Parliament to restrict judicial review in the Court of Session. He also recognised that
section 28 of the Scotland Act which empowered the Scottish Parliament to make laws,
subject to the issues of legislative competence in section 29, provided in subsection (7):
"(7) This section does not affect the power of the Parliament of the United Kingdom
to make laws for Scotland."
But, as I understood it, the petitioner's position was that section 28(7) had to be read subject
to the distinction between devolved and reserved matters. Counsel submitted, without
reference to authority, that this section did not allow the UK Parliament to interfere with a
devolved matter.
The petitioner's second argument
[9]
The petitioner's second argument was much more wide ranging.
[10]
The starting point for the petitioner was that the principle of Parliamentary
sovereignty was constrained in two important respects: first, by the Treaty of Union; and,
second, by the common law and by the principle of the rule of law itself. Counsel for the
petitioner developed his argument in relation to each of these respects.
The Treaty of Union argument
[11]
In relation to the Treaty of Union, the petitioner relied upon Article XIX. For present
purposes, the material parts of Article XIX are as follows:
"XIX. `That the Court of Session, or College of Justice, do, after the Union, and
notwithstanding thereof, remain, in all time coming, within Scotland, as it is now
constituted by the Laws of that Kingdom, and with the same Authority and
Privileges, as before the Union, subject nevertheless to such Regulations for the better
Administration of Justice, as shall be made by the Parliament of Great Britain;..."
6
[12]
Counsel for the petitioner submitted that Article XIX was justiciable and qualified
Parliamentary sovereignty. In support of this proposition he relied on what was said by
Lord Hope in R (Jackson) v Attorney General [2006] 1 AC 262 at paragraph 106 where
Lord Hope highlighted a series of cases in which the court had reserved its opinion on the
effect of various articles of the Treaty of Union upon Parliamentary sovereignty
at 144; and Pringle, petitioner 1991 SLT 330). Counsel took me through this line of authority.
He also drew my attention to what Lord Hope said, prior to Jackson, in Lord Gray's
Motion [2002] 1 AC 124 which was a case before the House of Lords Committee for
Privileges concerning the removal of the right of hereditary peers to sit and vote in the
House of Lords. His Lordship again reserved his opinion on the issue of the justiciability of
the Treaty of Union but did say that:
"[...] the argument that the legislative powers of the new Parliament of Great Britain
were subject to the restrictions expressed in the Union Agreement by which it was
constituted cannot be dismissed as entirely fanciful." (at 139G-H)
[13]
Counsel argued that what was said by the UK Supreme Court In re Allister
[2023] 2 WLR 457 at paragraph 66, a case concerning the compatibility of the Withdrawal
Agreement and the Northern Ireland Protocol fell to be distinguished.
"66 The debate as to whether article VI created fundamental rights in relation to
trade, whether the Acts of Union are statutes of a constitutional character, whether
the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the
correct interpretative approach when considering such statutes or any fundamental
rights, is academic. Even if it is engaged in this case, the interpretative presumption
that Parliament does not intend to violate fundamental rights cannot override the
clearly expressed will of Parliament. Furthermore, the suspension, subjugation, or
modification of rights contained in an earlier statute may be effected by express
words in a later statute. The most fundamental rule of UK constitutional law is that
Parliament, or more precisely the Crown in Parliament, is sovereign and that
legislation enacted by Parliament is supreme. A clear answer has been expressly
provided by Parliament in relation to any conflict between the Protocol and the
rights in the trade limb of article VI. The answer to any conflict between the Protocol
7
and any other enactment whenever passed or made is that those other enactments
are to be read and have effect subject to the rights and obligations which are to be
recognised and available in domestic law by virtue of section 7A(2)."
[14]
In re Allister concerned different legislation and a different Union Article VI of the
Acts of Union of 1800. The line of cases dealing with Article XIX of the 1707 Treaty of Union
had not been addressed by the court. The legislation introducing section 11A contained no
express reference to an intention to override the 1707 Treaty.
[15]
The petitioner's position was simply that the question of whether section 11A was
truly for "the better Administration of Justice" in terms of Article XIX was a matter for the
courts to determine. Counsel submitted that when the underlying basis for the introduction
of section 11A was considered, it could not properly be said that it was for the better
administration of justice.
[16]
The UK Government had promoted the bill which became the 2022 Act only after an
independent review (the Independent Review of Administrative Law or "IRAL") and
subsequent consultation. The IRAL had recommended reform to the rule governing judicial
review of decisions by the Upper Tribunal to refuse permission to appeal against decisions
of a First-tier Tribunal, which rule was established for England and Wales in R(Cart) v Upper
Tribunal [2012] 1 AC 663 (and subsequently, for Scotland, in Eba v Advocate General 2012
SC (UKSC) 1). The IRAL 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" (IRAL at paragraph 3.46).
The IRAL had reached this conclusion having carried out an analysis of the comparative
success rates of applications for judicial review (IRAL at paragraphs 3.41 to 3.45) which
apparently showed, for England and Wales, that the success rate for Cart judicial reviews
which had been subject to a Cart judicial review was very low at 0.22% (see IRAL at
8
paragraph 3.46). Subsequent analysis had shown that both the data and analysis relied
upon by the IRAL was significantly flawed (see J Tomlinson and A Pickup "Putting the Cart
before the horse? The Confused Empirical Basis for Reform of Cart Judicial Reviews", UK
Constitutional Law Association, 29 March 2021).
[17]
Counsel also pointed out that the IRAL contained no equivalent comparative figures
for Scotland. Accordingly, he submitted that no basis had been put forward for removing
judicial review of second appeals which satisfied the test set down in section 27B of the
Court of Session Act 1988.
[18]
Counsel noted that, following the criticism of the data founded upon in the IRAL, the
UK Government had accepted that the resulting figure for the success rate was too low (see
Judicial Review Reform Consultation: The Government Response (CP477) at pages 37 to 38,
paragraphs 4 and 5). Thereafter, following further investigation, the UK Government had
concluded that the correct success rate figure for judicial reviews which had been subject to
a Cart judicial review was, in fact, 3.4% (see CP477 at pages 14 and 37 to 42). In the
Government Response document, this figure is contrasted with the success rate in other
types of judicial review which is said to be between 40 to 50%. However, counsel noted that
this analysis had, in turn, been the subject of academic criticism. He drew my attention to an
article by Mikolaj Barczentewicz, an Associate Professor (Reader) in Law at the University of
Surrey, entitled "Cart Challenges, Empirical Methods and Effectiveness of Judicial Review"
Modern Law Review 2021 84(6) 1360 to 1384. The author highlighted what he considered
were "manifest flaws" of the analysis contained in the UK Government's Response (at 1371).
First, the author criticised the figures by the UK Government for other types of judicial
review as being unsubstantiated. Second, the author criticised the analysis on the grounds
9
of its treatment of the settlement rate of Cart challenges (at 1371 -2). The author concluded
as follows:
"It is difficult to offer an apples-to-apples comparison of rates of success between
Cart and non-Cart challenges, due to special characteristics of Cart cases. And even if
we decided that it is appropriate to compare, for example, success rates in Cart-
following Upper Tribunal appeals with success rates in non-Cart judicial reviews in
the High Court, then we face the problem of lack of data on settlements. Ignoring
settlements, the success rates are very close - 2.3 per cent (or 3.4 per cent according to
the Government) for Cart challenges and 3.9 per cent for non-Cart cases in the same
period. With settlements the comparison could be less favourable to Cart cases, but it
cannot be simply assumed based on anecdotes that 30-50 per cent of non-Cart claims
settle favourably to the claimant. This has never been shown and it would be a very
significant advance in our understanding of judicial review to find that out."
(at 1382-3)
[19]
On this basis, counsel for the petitioner submitted that it was for the court to examine
the evidence and consider whether or not it justified the conclusion contended for by the UK
Government. He contended that the UK Government had not demonstrated that the
introduction of section 11A resulted in the "better administration of justice" as required by
Article XIX.
The rule of law
[20]
The starting point for the second basis upon which the petitioner argued that
Parliamentary sovereignty was constrained was again the speeches in R (Jackson) v Attorney
General (as above at [12]) and, in particular, what was said by Lord Steyn (at paragraph 102)
and Lord Hope (at paragraphs 104 and 107). Given their significance to the petitioner's
argument, I consider that these passages are worthy of being quoted in full. First
Lord Steyn:
"102 [...] This is where we may have to come back to the point about the supremacy
of Parliament. We do not in the United Kingdom have an uncontrolled constitution
as the Attorney General implausibly asserts. In the European context the second
Factortame decision [1991] 1 AC 603 made that clear. The settlement contained in the
10
Scotland Act 1998 also point to a divided sovereignty. Moreover, the European
Convention on Human Rights as incorporated into our law by the Human Rights
Act 1998 , created a new legal order. One must not assimilate the European
Convention on Human Rights with multilateral treaties of the traditional type.
Instead it is a legal order in which the United Kingdom assumes obligations to
protect fundamental rights, not in relation to other states, but towards all individuals
within its jurisdiction. The classic account given by Dicey of the doctrine of the
supremacy of Parliament, pure and absolute as it was, can now be seen to be out of
place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is
still the general principle of our constitution. It is a construct of the common law. The
judges created this principle. If that is so, it is not unthinkable that circumstances
could arise where the courts may have to qualify a principle established on a
different hypothesis of constitutionalism. In exceptional circumstances involving an
attempt to abolish judicial review or the ordinary role of the courts, the Appellate
Committee of the House of Lords or a new Supreme Court may have to consider
whether this is constitutional fundamental which even a sovereign Parliament acting
at the behest of a complaisant House of Commons cannot abolish. It is not necessary
to explore the ramifications of this question in this opinion. No such issues arise on
the present appeal."
[21]
Then Lord Hope:
"104. My Lords, I start where my learned friend, Lord Steyn, has just ended. Our
constitution is dominated by the sovereignty of Parliament. But parliamentary
sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense
referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is
no longer right to say that its freedom to legislate admits of no qualification
whatever. Step by step, gradually but surely, the English principle of the absolute
legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone
is being qualified.
...
107. Nor should we overlook the fact that one of the guiding principles that were
identified by Dicey at p 35 was the universal rule or supremacy throughout the
constitution of ordinary law. Owen Dixon, `The Law and Constitution' (1935) 51 LQR
590, 596 was making the same point when he said that it is of the essence of
supremacy of the law that the courts shall disregard as unauthorised and void the
acts of any organ of government, whether legislative or administrative, which exceed
the limits of the power that organ derives from the law. In its modern form, now
reinforced by the European Convention on Human Rights and the enactment by
Parliament of the Human Rights Act 1998, this principle protects the individual from
arbitrary government. The rule of law enforced by the courts is the ultimate
controlling factor on which our constitution is based. The fact that your Lordships
have been willing to hear this appeal and to give judgment upon it is another
indication that the courts have a part to play in defining the limits of Parliament's
legislative sovereignty."
11
[22]
Counsel for the petitioner emphasised that these passages demonstrated that
although Parliamentary sovereignty was fundamental, it was not absolute and unqualified.
Furthermore, counsel also submitted that Jackson was authority for the fact that a challenge
to primary legislation was justiciable at common law (see Lord Bingham at paragraph 10
and Lord Hope at paragraph 110). That view had been endorsed by McCloskey J in Re
[23]
Counsel also drew attention to what was said in Axa General Insurance Company
Limited v Lord Advocate 2012 SC (UKSC) 122 in respect of the review of legislation passed by
the Scottish Parliament (at paragraphs 49 to 51; see also Lord Mance at paragraph 97). What
was said was consistent with the proposition that the courts must retain the power to insist
that legislation, for example, to abolish judicial review or diminish the role of the courts in
protecting the interests of the individual is not law which the courts will recognise.
[24]
From this starting point, the petitioner essentially founded this part of his argument
on the judgment of Lord Carnwarth in R (Privacy International) v Investigatory Powers
Tribunal [2020] AC 491. This case concerned a judicial review brought of a decision of the
Investigatory Powers Tribunal. The competency of such review was challenged in terms of
section 67(8) of the Investigatory Powers Act 2000 which provided that, except to such
extent as the Secretary of State might otherwise provide, determinations, awards, orders and
other decisions of the Investigatory Power Tribunal, including decisions as to whether it had
jurisdiction, should not be subject to appeal or be liable to be questioned in any court.
Ultimately, the UK Supreme Court decided, by a majority, that, properly construed,
section 67(8) did not exclude the High Court's judicial review jurisdiction. However,
Lord Carnwarth also opined, obiter, that:
12
"144. [...] I see a strong case for holding that, consistently with the rule of law,
binding effect cannot be given to a clause which purports wholly to exclude the
supervisory jurisdiction of the High Court to review a decision of an inferior court or
tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases,
regardless of the words used, it should remain ultimately a matter for the court to
determine the extent to which such a clause should be upheld, having regard to its
purpose and statutory context, and the nature and importance of the legal issue in
question; and to determine the level of scrutiny required by the rule of law."
Both Lady Hale and Lord Kerr agreed with Lord Carnwarth. However, Lord Sumption,
Lord Reed and Lord Wilson all dissented. Lord Lloyd-Jones agreed with Lord Carnwarth
on the question of the construction of section 67(8) and in how to dispose of the appeal but
expressed no view on the argument on which Lord Carnwarth was commenting at
paragraph 144.
[25]
Counsel for the petitioner's argument was that, following Lord Carnwarth, it was a
matter for the court to determine whether the ouster represented by section 11A should be
upheld having regard to the robust criteria he identified, namely: its purpose, statutory
context, and the nature and importance of the legal issue in question.
[26]
Dealing with purpose and statutory context, counsel drew support for his position
from the approach of the UK Supreme Court in Cart (as above at [16]). In that case, in
determining the correct scope of judicial review of Upper Tribunal permission decisions, the
court had rejected what was described as being the "exceptional circumstances" approach.
In other words, where review was restricted to cases involving an excess of jurisdiction, the
denial of fundamental justice or some other exceptional circumstance (see paragraph 38 per
Lady Hale). Lord Dyson had observed that it was difficult to see any principled basis for
holding that only jurisdictional errors of law should be reviewable. In practical terms, the
classification of the error made no difference to those affected by it. His Lordship's opinion
was that such a distinction did not promote the rule of law (at paragraph 110). Counsel
13
submitted that this approach was consistent with the judgment of Lord Carnwarth in Privacy
International (see paragraphs 128 to 134).
[27]
Counsel submitted that the key point was that section 11A significantly reduced the
ability of citizens to access the remedy of judicial review. Section 11A only provided for the
remedy to be available in extremely limited circumstances. As such, the approach taken by
the UK Government in relation to section 11A ran contrary to that endorsed by the UK
Supreme Court in both Cart and Eba (as at [16] above). Counsel drew my attention to what
was said by Lord Hope delivering the judgement of the court in Eba at paragraphs 44
and 45.
[28]
In relation to the other criteria identified by Lord Carnwarth, namely, the nature and
importance of the legal issue in question, counsel submitted that section 11A would have the
result of making the Upper Tribunal the final arbiter of matters even where there had been a
serious error of law on an important point of principle. The UK Supreme Court in Cart had
disapproved of such an approach (see Cart at paragraphs 43 and 57 per Lady Hale; 112 per
Lord Brown; and 130 to 131 per Lord Dyson). In this regard, reference was also made to
what Lord Carnwarth had said about the risk of the law being developed in isolation in
Privacy International at paragraph 139. This result was, so it was said, neither proportionate
nor consistent with the rule of law. This position was particularly acute in the field of
asylum and immigration where the serious consequences of errors had been recognised by
the courts (see R(G) v Immigration Appeal Tribunal [2005] 1 WLR 1445 at paragraph 24 and
R (Sivasubramaniam) v Wandsworth County Council [2003] 1 WLR 475 at paragraph 52).
[29]
In this regard, counsel also referred to the criticisms of the comparative success rate
analysis which was said to underpin the UK Government's argument that dealing with Cart
judicial reviews represented a disproportionate use of resources, which he had made as part
14
of his argument in relation to Article XIX of the 1707 Treaty of Union (see above
at [16] to [18]).
[30]
Counsel for the petitioner also drew my attention to a series of articles which had
been written surrounding a previous attempt to alter the scope of judicial review of
immigration decisions: clause 11 of the Asylum and Immigration (Treatment of Claimants
etc) Bill 2003. As drafted, the subsection (3) of clause 11 was broader than section 11A and
specifically excluded:
"Subsections (1) and (2)- (a) prevent a court, in particular, from entertaining
proceedings to determine whether a purported determination, decision or action
of the Tribunal was a nullity by reason of (i) lack of jurisdiction, (ii) irregularity,
(iii) error of law, (iv) breach of natural justice, or (v) any other matter [...]"
This clause was intended to oust any jurisdiction of the courts to review the decisions of a
newly proposed single tier Asylum and Immigration Tribunal. The proposal to introduce
this clause provoked a very significant amount of comment and criticism: "Three strikes and
it's out? The UK Government's strategy to oust judicial review from immigration and asylum
decision making" A Le Sueur [2004] PL 225; "The utility of the Human Rights Act: a reply to
Keith Ewing" Lord Lester QC (now KC) [2005] PL 249; and "Common Law Illegality of Ousting
Judicial Review" Michael Fordham [2004] JR 86. In respect of this proposal, Lord Woolf, then
Lord Chief Justice of England and Wales, remarked:
"I am not over-dramatising the position if I indicate that, if this clause were to
become law, it would be so inconsistent with the spirit of mutual respect between
the different arms of government that it could be the catalyst for a campaign for a
written constitution. Immigration and asylum involve basic human rights. What
areas of government decision-making would be next to be removed from the
scrutiny of the courts? What is the use of courts, if you cannot access them?" (see
Lord Woolf CJ, "The rule of law and a change in the constitution" The Squire Centenary
The clause was eventually withdrawn by the Government.
15
[31]
Counsel for the petitioner submitted that similar criticisms could be advanced in
respect of clause 11A and urged me, by adopting the approach of Lord Carnwarth in Privacy
International, to grant the declarator sought. Counsel recognised that R (Oceana) v Secretary
Wales, in which the effectiveness of section 11A had been challenged on similar lines as
those advanced before me and had been rejected by Mr Justice Saini (see paragraphs 44
to 54). However, he submitted that that case was not binding on me. He also highlighted
the fact that the arguments he made in respect of the data put forward by the UK
Government (see [16] to [18] above) did not appear to have been advanced by the claimant
in Oceana.
Respondent's submissions
[32]
The starting point for senior counsel for the respondent was that there were two key
propositions which underlay the petitioner's argument: first, that the court can refuse to
apply section 11A if it is contrary to the rule of law; and second, that because section 11A
excludes the judicial review which the petitioner seeks to bring, the section is contrary to the
rule of law. Both of these propositions had been advanced in Oceana and both had been
rejected by Mr Justice Saini (at paragraphs 42 and 52). Senior counsel drew attention to
three key points from Oceana. First, section 11A had been held to be both consistent with
Cart and with the rule of law (at paragraphs 47 to 49). Second, in relation to ouster clauses
more generally, the most fundamental rule of our constitutional law is that the Crown in
Parliament is sovereign and legislation passed by both Houses of Parliament is supreme (at
paragraph 52). Third, in reaching these conclusions, Mr Justice Saini had been aware of the
judgements in Privacy International (see paragraph 51). Mr Justice Saini's decision had not
16
been appealed and senior counsel submitted that I should adopt the same approach in
dismissing the petition.
Parliamentary sovereignty
[33]
The respondent's position was, in short, that the principle of Parliamentary
sovereignty defeated all of the arguments advanced on behalf of the petitioner. Senior
counsel took me through a line of cases, four of which post-dated the decision in Privacy
International on which the petitioner founded and submitted that these cases were authority
for two headline propositions: first, properly analysed, no support could be found for the
notion that a court could decline to apply an act of the UK Parliament; and, second, the line
of authority affirmed that Parliamentary sovereignty was a fundamental principle of the UK
constitution which applied as much to the courts as to anyone else.
[34]
Starting with Axa (as above at [23]), senior counsel highlighted Lord Hope's view
that "[a] sovereign Parliament is, according to the traditional view, immune from judicial
scrutiny because it is protected by the principle of sovereignty" (at paragraph 49).
Lord Hope contrasted this with the position of the devolved legislatures. Senior counsel
noted that, in Axa, Lord Reed had recognised that this principle interacted with the principle
of legality so "Parliament cannot itself override fundamental rights or the rule of law by
general or ambiguous words" (at paragraph 152). In support of this proposition, Lord Reed
quoted Lord Steyn in R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539
"Unless there is the clearest provision to the contrary, Parliament must be presumed not to
legislate contrary to the rule of law" (at page 591). Senior counsel sought to argue that Lord
Reed in this passage should be taken as endorsing the view that Parliament can legislate
contrary to the rule of law.
17
[35]
Senior counsel then referred to R (Miller) v Secretary of State of Exiting the European
Union [2018] AC 61 in which the majority of eight justices said the following on the issue of
Parliamentary sovereignty (at paragraphs 42 and 43):
"42. [...] However, it is not open to judges to apply or develop the common law in a
way which is inconsistent with the law as laid down in or under statutes, i.e. by Acts
of Parliament.
43. This is because Parliamentary sovereignty is a fundamental principle of the UK
constitution, as was conclusively established in the statutes referred to in para 41
above. It was famously summarised by Professor Dicey as meaning that Parliament
has
`the right to make or unmake any law whatever; and, further, that no person
or body is recognised by the law of England as having a right to override or
set aside the legislation of Parliament'"
Senior counsel contrasted how Dicey's statement as to the sovereignty of Parliament was
treated by the majority in Miller with the more qualified way in which it had been referred
to by Lord Steyn and Lord Hope in Jackson (see above at [21]). In this regard, he also drew
my attention to what the Inner House had described as the greatly exaggerated reports of its
demise when referring to Dicey's description of Parliamentary sovereignty in Keatings v
[36]
Senior counsel drew my attention to the fact that the statutes referred to by the
majority in Miller included the Acts of Union 1706 (in England and Wales) and 1707 in
Scotland (see paragraph 41). On this basis, he submitted that the Treaty of Union could not
properly be seen as an exception to the principle of Parliamentary sovereignty. On the
contrary, these acts were part of the legal landscape that established that principle.
[37]
The third case referred to was Cherry v Lord Advocate 2020 SC (UKSC) 1. This was a
unanimous decision of 11 justices concerning the prorogation of Parliament. Senior counsel
referred to it simply to draw to my attention the statement of the court that:
18
"Two fundamental principles of our constitutional law are relevant to the present
case. The first is the principle of parliamentary sovereignty: that laws enacted by the
Crown in Parliament are the supreme form of law in our legal system, with which
everyone, including the government, must comply." (at paragraph 41)
[38]
Senior counsel also referred to Re JR 80's Application for Judicial Review (as at [22]
above). Counsel for the petitioner had referred to this case for the comments of Mr Justice
McCloskey when dealing with an application to amend (see [22] above). The case concerned
judicial review proceedings brought in Northern Ireland against the background of the
breakdown in the devolved institutions. Senior counsel referred to the subsequent Court of
Appeal decision in the same case ([2019] NICA 58). He drew my attention to what
Lord Justice Stephens (as he then was), giving the judgment of the court, had said about
how the judgments of Lord Steyn and Lord Hope in Jackson (above) should be approached:
"[...] It can be seen that the issue in Jackson turned on the proper construction of
section 2 of the 1911 Act which is a `question of law which cannot, as such, be
resolved by Parliament.' On that basis Jackson authoritatively defines one particular
circumstance in which the courts will hear and give judgment upon the question as
to whether an Act of Parliament is invalid. However on an obiter basis Lords Steyn
and Hope raised questions as to whether there were other circumstances in which
the courts could declare an Act of Parliament to be invalid. [...] It can be seen that
Jackson did not decide that there was a common law exception to the principle that
`the courts in this country have no power to declare enacted law to be invalid' but
even if there was such an exception the threshold for its operation is extraordinarily
high." (paragraph 52)
[39]
On this basis, the Court of Appeal concluded:
"[110] The present arrangements are to be found in the 2018 and 2019 Acts passed by
the Westminster Parliament. The sovereignty of the Westminster Parliament in
constitutional law means that the courts in this country have no power to declare
enacted law to be invalid. At paragraphs [52] and [53] we have summarised the
obiter comments as to whether there is a limit to Parliamentary sovereignty at
common law. There is no decided authority for such a limit. We do not consider
that this court has any jurisdiction to declare the provisions to be invalid."
[40]
that the judgment in this case, interpreting section 28(7) of the Scotland Act 1998, provided a
19
definitive answer to the petitioner's first argument. It was clear beyond argument that the
powers of the Scottish Parliament did not affect the power of the UK Parliament also to
make laws for Scotland (see paragraphs 7 and 8). Senior counsel also drew attention to one
other aspect of the UNCRC judgment which was the emphasis which had been put by
Lord Reed on legal certainty as an important aspect of the rule of law (see paragraph 76).
He submitted that this was an important consideration pointing away from following the
course contended for by the petitioner and granting the declarator sought. Such a course
would inevitably give rise to uncertainty because Lord Carnwarth's "strong case" in Privacy
International lacked robust criteria as to the circumstances in which provisions should not be
upheld.
[41]
Senior counsel finally made reference to In re Allister (as above at [13]). He did so for
two reasons. First, because he drew attention to the fact that Lord Stephens had referred to
the Parliamentary sovereignty as "the most fundamental rule of UK constitutional law" (at
paragraph 66). The second point was to notice that in that case the UK Supreme Court had
held that the UK Parliament could lawfully legislate contrary to the terms of the Acts of
Union 1800.
Section 11A
[42]
Senior counsel accepted that the effect of section 11A was to narrow the grounds of
review that were available in respect of a particular set of Upper Tribunal decisions namely,
decisions to refuse permission to appeal. As such, he submitted that section 11A did not
touch upon the review of administrative action (see R(G) (as above at [28]) at paragraphs 12
and 13). In the case of immigration and asylum, the administrative decision of the Home
Secretary was the subject of a full merits appeal to the First-tier Tribunal. Section 11A
20
concerned only decisions by the Upper Tribunal to refuse a further appeal to it from the
First-tier Tribunal.
[43]
He submitted that section 11A had to be seen in its institutional context. To start
with, section 11A was not the first occasion on which the right to judicially review had been
the subject of statutory intervention. Previously, following Cart and Eba, section 27B of the
Court of Session Act 1988 containing the second appeals test had been introduced by way of
an Act of the Scottish Parliament. Looking at the Upper Tribunal, it was a specialist tribunal
providing a mechanism whereby the decision of the First-tier Tribunal could be subject to
judicial review. To that extent, it was carrying out the role of the Outer House would have
fulfilled were the First-tier Tribunal to be subject to judicial review (see MM v Criminal
Injuries Compensation Authority 2018 SLT 843 at paragraph 8).
[44]
Senior counsel also drew attention to the background which had led to section 11A
and, in particular, the development of the second appeals test in Cart. He pointed out that,
in Cart, the UK Supreme Court had been dealing with a situation in which the 2007 Act did
not purport to oust or exclude judicial review of unappealable decisions of the Upper
Tribunal (at paragraph 37 per Lady Hale). As Lord Dyson had put it, Parliament had
refused to undertake a review of the scope of judicial review and so that task had to be
performed by the courts (at paragraph 120). It was from that starting point that the court
had adopted the second appeals test and rejected the "exceptional circumstances" approach
which had been the result in both the Divisional Court (see paragraph 31) and the Court of
Appeal (see paragraph 33). However, in reaching its conclusion that court had recognised
the possibility that it was within the power of Parliament to provide, through legislation,
that a tribunal of limited jurisdiction should be the ultimate interpreter of the law which it
has to administer (see paragraph 40).
21
[45]
Senior counsel submitted that the restriction introduced by section 11A was the
statutory equivalent of the "exceptional circumstances" test. In other words, the judicial
review of the Upper Tribunal's refusal of permission to appeal was restricted to cases
involving jurisdictional error or serious procedural defect. This test had been the conclusion
of both the Divisional and Appeal Courts in Cart. It was not an extreme position. In this
regard, before leaving Cart, senior counsel reminded me of Lord Brown's observation:
"The rule of law is weakened, not strengthened, if a disproportionate part of the
courts' resources is devoted to finding a very occasional grain of wheat on a
threshing floor full of chaff." (at paragraph 100).
[46]
The approach in Cart had, of course, also been adopted in Eba for judicial review
proceedings in Scotland. Senior counsel highlighted that Lord Hope, in giving the judgment
of the court, recognised that what was in issue was not access to the remedy itself but rather
how best to tailor the scope of the remedy according to the nature and expertise of the
Upper Tribunal (at paragraph 44).
[47]
Against this background, the UK Government had, pursuant to a manifesto
commitment ahead of the 2019 UK General Election, established IRAL. IRAL had
recommended removing the Cart second appeals test on the basis that it did not represent a
proportionate use of judicial resources (see above at [16]). Following further consultation,
the UK Government had then legislated in the form of the Judicial Review and Courts
Act 2022 which, through section 2, introduced section 11A.
[48]
Responding to the criticisms made by the petitioner in relation to the analysis of data
which underlay both IRAL's conclusions and those of the UK Government, senior counsel
made two points. First, he submitted that in its response document, the Government had
recognised the flaws in the IRAL's approach and as a result had carried out further research.
However, following that, the UK Government remained of the view that the success rate of
22
Cart appeals was low when compared with other types of judicial review (UK Government
Response document CP477 at paragraph 35). Senior counsel recognised that criticisms had
been made of the analysis contained in the Response document by Mr Barczentewicz
(see [18] above) but no positive alternative position had been forward by the author.
[49]
Secondly, and in any event, it was wrong to suggest that the comparative success
rate was the sole basis for the decision to proceed with its proposed reform. This was only
one of a number of factors which had been considered:
"Given the high number of Cart Judicial Review claims (around 750 a year from
2016-2019), the very low success rate, and that the Upper Tribunal is a Superior
Court of Record (which means it can set precedents and enforce its decisions)
presided over by senior judges, which sits as the apex of a wider system of checks
and balances for certain administrative decisions, the Government's conclusion is
that Cart Judicial Reviews are a disproportionate use of valuable judicial resource."
(CP477 at paragraph 36)
[50]
However, more fundamentally, senior counsel submitted that the courts were not the
appropriate forum for the merits of legislative choices to be debated. That was a matter for
Parliament. He reminded me of what Lord Bingham had said in R (Countryside Alliance) v
Attorney General [2008] 1 AC 719 about the democratic process being liable to be subverted if,
on a question of political or moral judgment, opponents of legislation achieve through the
courts what they could not achieve in Parliament (at paragraph 45). He submitted that
respect for Parliament's constitutional function meant that the courts would exercise
considerable caution before intervening in matters which fell within the ambit of policy (see
Bank Mellat v HM Treasury (No. 2) [2014] AC 700 at paragraph 44 per Lord Sumption). In
particular, when considering issues of proportionality, it was not a situation in which the
court should seek to substitute judicial opinions for legislative ones (Bank Mellat at
paragraph 75 per Lord Reed).
23
Privacy International
[51]
Senior counsel made a series of points in relation to the petitioner's reliance on
Lord Carnwarth's judgment in Privacy International. First, the passage relied upon by the
petitioner was obiter. Second, there was no majority support for it among the justices of the
UK Supreme Court (see [24] above). Third, Lord Carnwarth's view was not a concluded
one; it was only that there was, in his view, a strong case. Fourth, even if the test posited by
Lord Carnwarth were applied, it still required to be met by the petitioner. Lord Carnwarth
himself had recognised that some forms of ouster clause would readily satisfy the test (at
paragraph 133). It was important to appreciate that the particular clause which the court
was considering in Privacy International was complete exclusion of review (at
paragraph 136). That was not the position created by section 11A.
[52]
Senior counsel submitted, further, that Lord Carnwarth's reasoning was
unpersuasive. Too much weight had been placed on the judgments in Cart (see
paragraph 131). As had already been submitted, that case dealt with a situation in which the
statute was silent on the question and contained no ouster clause. As to the argument that
restrictions on the grounds of review risked the development of "local law"
(Lord Carnwarth at paragraph 139), this did not arise in the present case as the petitioner
conceded that no point of importance arose in his case. In any event, senior counsel
submitted that it was a matter for the legislature in formulating section 11A to consider the
class of cases in respect of which further review would be excluded. Those cases would each
have involved a decision by the Secretary of State, a full appeal on the merits before the
First-tier Tribunal and then further consideration of the arguability of any grounds of appeal
by the Upper Tribunal.
24
[53]
It was important properly to consider the nature of Upper Tribunal's jurisdiction in
respect of granting permission to appeal. That turned on an assessment as to whether the
First-tier Tribunal had erred in law. As such, review of the Upper Tribunal's permission
decision was, in effect, a further appeal against the First-tier Tribunal's decision on its
merits. Viewed from this perspective, senior counsel submitted that a number of
Lord Sumption's observations in Privacy International were applicable here (see
paragraph 172). In the same way, Lord Sumption observes later in his judgment that the
rule of law is concerned with the availability of judicial review rather than to protect the
jurisdiction of the High Court from any "putative turf war" (at paragraph 199). In this
regard, senior counsel also made reference to the observations of Lord Wilson (see
paragraphs 239 to 244).
Responses to petitioner's arguments
[54]
The respondent's primary response to all of the petitioner's arguments was that it
was clear from the line of cases through which senior counsel had taken me that the courts
could not disregard an act of the UK Parliament (see [34] to [41] above). The court did not
need to address hypothetical situations which did not arise in the present case. For present
purposes, the key point was that there was no authority which supported the proposition
that there were in fact any actual limits at common law on Parliamentary sovereignty to
legislate which could be exercised by the courts. In fact, the Court of Appeal in JR 80 had
gone as far as to say that it had no such power (see [39] above).
[55]
In respect of the petitioner's first argument, the respondent's position was that this
was entirely misconceived standing the terms of section 28(7) of the Scotland Act. That was
25
clear beyond argument standing the terms of the decision of the UK Supreme Court in
UNCRC (as above at [40], paragraphs 7 and 8).
[56]
In relation to the petitioner's argument based on Article XIX of the Treaty of Union,
the respondent's primary position was that there was no conflict between this article and
section 11A. That was because Article XIX was subject to the qualification that: "subject
nevertheless to such Regulations for the better Administration of Justice, as shall be made by
the Parliament of Great Britain". This was precisely what section 11A represented.
Furthermore, senior counsel submitted that what was for the "better administration of
justice" was not justiciable. He drew my attention to what was said by Lord Keith in Gibson
(as above at [12]) concerning the justiciability of the words "but that no alteration may be
made in laws which concern private right except for the evident utility of the subjects within
Scotland" contained in Article XVIII of the Treaty.
"I am, however, of opinion that the question whether a particular Act of the United
Kingdom Parliament altering a particular aspect of Scots private law is or is not `for
the evident utility' of the subjects within Scotland is not a justiciable issue in this
Court. The making of decisions upon what must essentially be a political matter is
no part of the function of the Court, and it is highly undesirable that it should be.
The function of the Court is to adjudicate upon the particular rights and obligations
of individual persons, natural or corporate, in relation to other persons or, in certain
instances, to the State. A general inquiry into the utility of specific legislative
measures as regards the population generally is quite outside its competence." (at
page 144).
Senior counsel submitted that Lord Keith's analysis in respect of "evident utility" in
Article XVIII was strongly analogous with the "better administration of justice" in
Article XIX. In neither case was there a clear legal standard to be applied. Both were
questions about which reasonable people might disagree. They were both, it was submitted,
questions for the legislature.
26
[57]
The respondent's secondary position on this argument was that in the event that I
was not persuaded by the respondent's first argument and considered that there was a
conflict between Article XIX of the Treaty of Union and section 11A, then In re Allister made
clear that Parliamentary sovereignty manifest in the form of legislation trumped provisions
of union treaties (as above at [13], paragraph 66).
[58]
Finally, the respondent's response to the petitioner's argument based on the common
law and the rule of law was straightforward. The rule of law applied as much to the courts
as everyone else. The courts could not refuse to uphold the will of Parliament expressed
through legislation. This was consistent with the line of cases relied upon by the respondent
(see [33] to [41] above). On the occasions when the courts had addressed this issue directly,
they had declined to hold that there was any power to do so (see JR 80 (Court of Appeal) at
paragraph 110; Oceana at paragraph 52).
[59]
The petitioner could point to no authority directly in support of its argument. The
speeches in Jackson relied on by the petitioner had to be seen in the light of the subsequent
cases relied upon by the respondent. The articles written in relation to clause 11 of the
Asylum and Immigration (Treatment of Claimants etc) Bill 2003 clearly did not take account
of the almost twenty years of cases which had been decided since then and, in any event,
concerned a different provision. It was also notable that Lord Woolf did not suggest that the
courts would have any power to refuse to enforce the provision in question, rather he saw it
as a stimulus to campaign for a written constitution.
[60]
Finally, for the reasons senior counsel had already outlined (at [51] to [53]), he
submitted that I should not follow the course considered by Lord Carnwarth in his obiter
comments in paragraph 144 of Privacy International. Even were I to consider that the test
figured by Lord Carnwarth could be applied, it was not met in the case of section 11A.
27
The rule of law did not require every complaint of unlawfulness to be considered by a court
(Axa, per Lord Reed at paragraph 170). The judgments in both Cart and Eba recognised that
the remedy of judicial review was not contrary to the rule of law.
Petitioner's reply
[61]
Having made a brief reply, counsel for the petitioner advanced submissions in
respect of the merits of the petitioner's case.
Decision
[62]
At the outset, I want to record that I am extremely grateful to counsel on both sides
of the bar for the lengthy, detailed and extremely learned submissions, both orally and in
writing, with which I have been favoured. Lest this dispute go further, I have endeavoured
to record the arguments advanced before me. I mean no disrespect to those submissions
when I say that, although many complex and constitutionally significant matters were raised
in argument, I consider that the resolution of the issues before me is relatively
straightforward.
[63]
The petitioner seeks declarator that section 11A of the 2007 Act is unlawful, and
separately, null and void. This is an essential preliminary step for the petitioner because it
is accepted that, in the event section 11A is applied to his case, the decision of the Upper
Tribunal refusing permission to appeal dated 5 September 2022 would be final and could
not be questioned in this court (section 11A(2)).
[64]
As I have set out above, the petitioner essentially advanced three arguments in
support of his proposition that the section 11A is unlawful.
28
The petitioner's first argument
[65]
The first argument was that because judicial review was a devolved matter, not
being reserved in terms of Schedule 5 of the Scotland Act, this in some way prevented the
UK Parliament from legislating to restrict judicial review in Scotland. Admittedly, this
argument was only somewhat tepidly advanced by counsel. However, I consider that it is
entirely unstateable. There is no basis for this argument within the Scotland Act.
Section 28(7) of that Act makes clear that the UK Parliament's power to make laws for
Scotland is unaffected by that Act. That position was made abundantly clear in the
judgment of the UK Supreme Court in the UNCRC case (at paragraphs 7 and 8).
Accordingly, I have no hesitation in rejecting this argument.
The petitioner's second argument
[66]
The petitioner's second argument was that the court ought not to give effect to
section 11A on the basis that parliamentary sovereignty was constrained in two ways:
namely, first, by Article XIX of the 1707 Treaty of Union and, secondly, by the common law.
I will deal with these in turn.
Article XIX of the Treaty of Union
[67]
I consider that the first and principal problem with the petitioner's contentions based
upon the Treaty of Union is whether and, if so, to what extent the requirement contained in
Article XIX is justiciable by this court. There are two aspects to this question.
[68]
The first aspect is whether, as a matter of generality, the court has jurisdiction to
determine whether section 2 of the Judicial Review and Courts Act 2022, which introduced
section 11A, is or is not compatible with Article XIX of the Treaty of Union and, if so, what
29
the consequences of such a determination would be. This is the issue on which
Lord President Cooper expressly reserved his opinion in MacCormick (as at [12] above,
at 412). Since then, no subsequent court has required to go further than Lord President
Cooper beyond recognising the complexity and constitutional significance of the issue
(see Gibson as at [12], at 143 to 144 per Lord Keith; Pringle, petitioner as at [12] at 333 per
Lord Hope; Jackson at paragraph 106 per Lord Hope; Scottish Parliamentary Corporate Body v
Sovereign Indigenous Peoples of Scotland 2016 SLT 761 at paragraphs 45 and 46 per
Lord Turnbull; see also Lord Gray's Motion per Lord Hope at 136B to 139H).
[69]
Neither the unprecedented nature nor the potential significance of the step urged by
the petitioner would, in themselves, necessarily present an insuperable problem to the
petitioner's argument. However, before embarking on the resolution of that issue, I turn
first to the other aspect of the question of justiciability. That is whether, even assuming that
the compatibility of section 2 of the 2022 Act with Article XIX is justiciable, the court can
determine if section 11A, introduced by section 2, represents regulation for the better
administration of justice.
[70]
I consider that the resolution of this second, more specific, aspect of justiciability is
more straightforward. The petitioner does not dispute that the purpose of the 2022 Act is
the administration of justice. His position is, rather, that the administration of justice has not
been made better by it. However, the question of whether the administration of justice will
be "better" following the introduction of section 11A seems to me clearly to be a policy
question. Just as Lord Keith found in Gibson that an inquiry into the "evident utility" or
otherwise of a particular measure for the purposes of Article XVIII would be quite outside
the competence of the court (at page 144), I consider that the same can be said of an inquiry
into the better administration of justice for the purposes of Article XIX. As was apparent
30
from the lengthy process of reporting and consultation which led up to the passing of the
2022 Act (see [16] to [18] and [47] to [49] above), the assessment of whether and, if so, how
judicial review ought to be reformed involved a complex and multi-faceted appraisal.
Against this background, the petitioner had no meaningful answer as to by what process
and as against what measure the court was to go about determining whether or not the
2022 Act was for the better administration of justice. As Lord Turnbull found in Scottish
Parliamentary Corporate Body (at paragraph 48), I consider that this illustrates the force of
Lord Keith's observation. In this regard, I did not consider that the reliance by the petitioner
on the criticisms of the data and analysis of comparative success rates referred to by IRAL
and the UK Government came close to meeting this point.
[71]
Accordingly, as I do not consider the question of whether the 2022 Act is for the
better administration of justice is justiciable, I reject the petitioner's arguments advanced on
the basis of Article XIX of the Treaty of Union. Furthermore, having done so, and conscious
of both the complexity and the constitutional significance of the point at issue, I will add my
name to the illustrious list of those who, following Lord Cooper in MacCormick, have
reserved judgment on the broader question of the justiciability of Article XIX.
The common law and the rule of law
[72]
The other basis advanced by the petitioner for his second argument is that
parliamentary sovereignty is constrained at common law and, in particular, by the
requirements of the rule of law.
[73]
There are two fundamental elements of this argument which I consider to be
extremely problematic for the petitioner.
31
[74]
The first difficulty is whether, as a matter of law, the courts have the power at
common law to decline to give effect to statutory provision on the basis that the court
considers it to be contrary to the rule of law. This is the proposition for which
Lord Carnwarth (along with Lord Kerr and Lady Hale) considered, obiter, that there was a
"strong case" in Privacy International (at paragraph 144). Equally, it is the proposition the
advancement of which Lord Sumption (with whom Lord Reed agreed) considered, in the
same case, would represent a "mountain to climb" which the appellant's counsel was wise
not to attempt (at paragraph 209).
[75]
As with his argument based upon the Treaty of Union, in advancing this argument
counsel for the petitioner was in the position of urging the court to take an unprecedented
and highly constitutionally significant step. In fact, on this limb of his argument, it was
notable that on the two occasions on which courts were confronted directly by the question,
they had each decided that they had no power, at common law, to declare enacted statute
law to be invalid (JR 80 (Court of Appeal) at paragraph 110; Oceana at paragraph 52).
[76]
For his part, senior counsel for the respondent urged me to follow those precedents
and to hold that the court has no such power. He urged me to find that the statements made
by Lord Steyn and Lord Hope in Jackson (at paragraphs 103, 104 and 107) and
Lord Carnwarth in Privacy International (at paragraph 144) were "out of date" and no longer
represented an accurate statement of the law. I decline to follow the course proposed by
senior counsel.
[77]
I do so because I do not require to reach this determination in order to resolve the
case before me. That is because I do not consider that section 11A comes close to either the
"exceptional circumstances" posited by Lord Steyn or the wholesale exclusion of the
32
supervisory jurisdiction of the court referred to by Lord Carnwarth. This is the second
difficulty with the petitioner's argument.
[78]
As was recognised by Lady Hale in Cart (at paragraph 40) and Lord Carnwarth in
Privacy International (at paragraph 133), there is nothing either inherently or necessarily
inimical to the rule of law about a provision which restricts rights of appeal and review.
I consider that, seen in its proper context, section 11A represents an attempt by the
UK Parliament to address the issue identified by Lord Hope in Eba (at paragraph 44):
"The key to our doing so lies in a recognition that the issue is not one about access to
the remedy, which will remain available to the citizen as of right, or the purpose for
which the supervisory jurisdiction may be exercised. It is an issue about how best to
tailor the scope of the remedy according to the nature and the expertise of the Upper
Tribunal and the subject-matter of the decisions that have been entrusted to it by
Parliament."
In terms of section 11A, Parliament has chosen to strike the balance differently from the
resting place selected by the UK Supreme Court in Cart and Eba. However, section 11A is
not inconsistent with the rule of law. In this regard, I do consider that Lord Sumption's
comments, made in relation to the Investigatory Powers Tribunal in Privacy International are
applicable here:
"The purpose of judicial review is to maintain the rule of law. But the rule of law is
sufficiently vindicated by the judicial character of the Tribunal. It does not require a
right of appeal from the decisions of a judicial body of this kind." (at paragraph 172)
As such, I agree with Mr Justice Saini's conclusion in Oceana (at paragraph 49):
"[...] Parliament decided that a more stringent exclusion was necessary. In my
judgment, the policy behind the change does not conflict with the rule of law in any
sense and is consistent with the principle set out at [100] of Cart, namely that:
`The rule of law is weakened, not strengthened, if a disproportionate part of the
courts' resources is devoted to finding a very occasional grain of wheat on a
threshing floor full of chaff'."
33
[79]
Accordingly, I reject the petitioner's argument based on the common law on this
basis and, as a result of my conclusions on this point, there is no requirement for me to
engage with the broader question raised by senior counsel for the respondent. In this
regard, I am reminded of what Lord Keith said in Gibson:
"The function of the Court is to adjudicate upon the particular rights and obligations
of individual persons, natural or corporate, in relation to other persons or, in certain
instances, to the State." (at page 144).
Such an adjudication requires one to address and engage with the particular circumstances
which arise in the case as opposed to venturing too far into a more general inquiry,
particularly one as controversial and of such significance as the present.
Order
[80]
In light of the above, having rejected each of the arguments advanced in support of
the declarator, I will refuse the petitioner's first plea in law. Thereafter, the petition being
incompetent in terms of section 11A of the 2007 Act, I will sustain the respondent's second
plea in law and will refuse the petition. In these circumstances, section 11A(2) of the
2007 Act requires that I do not to consider the merits of the petition.
[81]
I will reserve all questions of expenses in the meantime.
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