The Court of Session has concluded in SOOY v Secretary of State for the Home Department [2023] CSOH 93 that the Judicial Review and Courts Act 2022 has been effective in removing the ability to bring a Cart/Eba judicial review of Upper Tribunal permission to appeal decisions, except in very limited circumstances. This is the same conclusion reached by the High Court of England and Wales in R (Oceana) v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791 (Admin) (covered on Free Movement here).

For those interested only in immigration law the main takeaway is that section 11A has not been declared unlawful and continues to apply in Scotland (for the time being, as it remains to be seen if Lord Richardson’s opinion will be appealed).

For those interested in constitutional law, the case discusses – albeit does not decide – the controversial question of whether primary legislation can be reviewed by the courts. In Oceana this question was answered with a firm no. SOOY provides a much more nuanced and balanced consideration of this interesting question, albeit ultimately reaching the same conclusion on section 11A as was reached in Oceana.

The provision under challenge

The provision being challenged in both cases was section 11A of the Tribunals, Courts and Enforcement Act 2007 introduced by section 2 of the Judicial Review and Courts Act 2022. This prohibits judicial review of the Upper Tribunal’s decision refusing permission to appeal unless the Upper Tribunal has acted in bad faith or “in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice”.

This provision was purportedly introduced due to the high volume of applications and low number of successful outcomes, in England and Wales (the government’s use of figures was widely disputed, including by the Immigration Law Practitioners’ Association).

As highlighted by the Law Society of Scotland during passage of the Bill, there is no evidence that such a problem existed in Scotland. The provision nonetheless applies in Scotland. This gives rise to five questions that were considered in SOOY:

Only the last two issues were considered in Oceana given that it was not a Scottish case.

Devolution

Lord Richardson had little hesitation concluding that the UK parliament can regulate judicial review in Scotland. Section 28(7) of the Scotland Act 1998 expressly preserves the UK Parliament’s power to make laws for Scotland, notwithstanding devolution. As such, this argument, which was “…only somewhat tepidly advanced by counsel” was rejected (at paragraph 65).

The Treaty of Union

The second question was not quite so easy to dismiss. It is well known that the Treaty of Union preserved Scotland’s distinct legal system. This included preserving the authority of the Court of Session. This was “subject to such regulations for the better administration of justice, as shall be made by the Parliament of Great Britain” (Treaty of Union, article XIX).

Back in 1953 the then Lord President, Lord Cooper, suggested that “…The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law” and that such a concept was difficult to reconcile with the terms of the Treaty of Union (MacCormick v Lord Advocate 1953 SC 396). This was a passing comment and, as such, did not definitively decide the issue.

To date, no court has ever definitively decided the point one way or another. Lord Cooper’s comments have, understandably, led to a huge amount of academic commentary however not much case law. In SOOY, Lord Richardson skilfully avoids resolving this issue, preferring instead to add his 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” (at paragraph 71).

Thus the answer to the second question above continues to be: maybe.

Lord Richardson held that, even if parliamentary sovereignty is qualified by the Treaty of Union, he cannot decide whether section 11A is for the “better administration of justice” as required by article XIX as this question is outside the competence of a court:

…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… As was apparent from the lengthy process of reporting and consultation which led up to the passing of the 2022 Act… 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 (at paragraph 70).

As a result, Lord Richardson declined to answer the third question posed above and rejected the argument that section 11A is unlawful due to the Treaty of Union.

The rule of law

In the past, the courts have hinted at the possibility that parliamentary sovereignty may be qualified by the rule of law. In R (Jackson) v Attorney General [2006] 1 AC 262 Lord Steyn suggested that:

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 (at paragraph 102)

In R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491, Lord Carnwarth suggested that there was “a strong case for holding” that the supervisory jurisdiction of the courts cannot be wholly excluded, even by primary legislation (at paragraph 144).

The Home Office argued that these comments were out of date and no longer represented an accurate statement of the law. Lord Richardson declined to endorse this, not because he agreed with the petitioner’s arguments, but because it was not necessary to decide the issue.

Thus the answer to the fourth question above continues to be: maybe. This is interesting in and of itself. It suggests that, at least in Scotland, there continues to be scope for arguing that there are limits to parliamentary sovereignty, albeit very tightly defined limits which will only be exceeded in extremis.

As with the Treaty of Union argument, the broader issue could be avoided by deciding that, even if it could be reviewed, section 11A would pass the test set out in the case law:

I do not consider that section 11A comes close to either the “exceptional circumstances” posited by Lord Steyn or the wholesale exclusion of the supervisory jurisdiction of the court referred to by Lord Carnwarth… there is nothing either inherently or necessarily inimical to the rule of law about a provision which restricts rights of appeal and review… 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 (at paragraphs 77 to 78).

On this issue, Lord Richardson agreed with Mr Justice Saini’s conclusions in Oceana. The answer to the fifth question above was therefore: no.

Conclusion

Unless this case is appealed to the Inner House, it appears that section 11A is here to stay, and the ability to challenge Upper Tribunal permission decisions will remain extremely limited.