Tribunals, Courts and Enforcement Bill [HL]

House of Commons

Session 2006 - 07
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Other Bills before Parliament

Tribunals, Courts and Enforcement Bill [HL]

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
12

(b)
if it does, must either—
(i)
remit the case to the Upper Tribunal or, where the decision of
the Upper Tribunal was on an appeal or reference from another
tribunal or some other person, to the Upper Tribunal or that
other tribunal or person, with directions for its reconsideration,
5
or
(ii)
re-make the decision.
(3)
In acting under subsection (2)(b)(i), the relevant appellate court may also—
(a)
direct that the persons who are chosen to reconsider the case are not to
be the same as those who—
10
(i)
where the case is remitted to the Upper Tribunal, made the
decision of the Upper Tribunal that has been set aside, or
(ii)
where the case is remitted to another tribunal or person, made
the decision in respect of which the appeal or reference to the
Upper Tribunal was made;
15
(b)
give procedural directions in connection with the reconsideration of the
case by the Upper Tribunal or other tribunal or person.
(4)
In acting under subsection (2)(b)(ii), the relevant appellate court—
(a)
may make any decision which the Upper Tribunal could make if the
Upper Tribunal were re-making the decision or (as the case may be)
20
which the other tribunal or person could make if that other tribunal or
person were re-making the decision, and
(b)
may make such findings of fact as it considers appropriate.
(5)
Where—
(a)
under subsection (2)(b)(i) the relevant appellate court remits a case to
25
the Upper Tribunal, and
(b)
the decision set aside under subsection (2)(a) was made by the Upper
Tribunal on an appeal or reference from another tribunal or some other
person,

the Upper Tribunal may (instead of reconsidering the case itself) remit the case
30
to that other tribunal or person, with the directions given by the relevant
appellate court for its reconsideration.
(6)
In acting under subsection (5), the Upper Tribunal may also—
(a)
direct that the persons who are chosen to reconsider the case are not to
be the same as those who made the decision in respect of which the
35
appeal or reference to the Upper Tribunal was made;
(b)
give procedural directions in connection with the reconsideration of the
case by the other tribunal or person.
(7)
In this section “the relevant appellate court”, as respects an appeal under
section 13, means the court specified as respects that appeal by the Upper
40
Tribunal under section 13(11).
"Judicial review"
15
Upper Tribunal’s “judicial review” jurisdiction
(1)
The Upper Tribunal has power, in cases arising under the law of England and
Wales or under the law of Northern Ireland, to grant the following kinds of
45
relief—

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
13

(a)
a mandatory order;
(b)
a prohibiting order;
(c)
a quashing order;
(d)
a declaration;
(e)
an injunction.
5
(2)
The power under subsection (1) may be exercised by the Upper Tribunal if—
(a)
certain conditions are met (see section 18), or
(b)
the tribunal is authorised to proceed even though not all of those
conditions are met (see section 19(3) and (4)).
(3)
Relief under subsection (1) granted by the Upper Tribunal—
10
(a)
has the same effect as the corresponding relief granted by the High
Court on an application for judicial review, and
(b)
is enforceable as if it were relief granted by the High Court on an
application for judicial review.
(4)
In deciding whether to grant relief under subsection (1)(a), (b) or (c), the Upper
15
Tribunal must apply the principles that the High Court would apply in
deciding whether to grant that relief on an application for judicial review.
(5)
In deciding whether to grant relief under subsection (1)(d) or (e), the Upper
Tribunal must—
(a)
in cases arising under the law of England and Wales apply the
20
principles that the High Court would apply in deciding whether to
grant that relief under section 31(2) of the Supreme Court Act 1981
(c. 54) on an application for judicial review, and
(b)
in cases arising under the law of Northern Ireland apply the principles
that the High Court would apply in deciding whether to grant that
25
relief on an application for judicial review.
(6)
For the purposes of the application of subsection (3)(a) in relation to cases
arising under the law of Northern Ireland—
(a)
a mandatory order under subsection (1)(a) shall be taken to correspond
to an order of mandamus,
30
(b)
a prohibiting order under subsection (1)(b) shall be taken to correspond
to an order of prohibition, and
(c)
a quashing order under subsection (1)(c) shall be taken to correspond
to an order of certiorari.
16
Application for relief under section 15(1)
35
(1)
This section applies in relation to an application to the Upper Tribunal for relief
under section 15(1).
(2)
The application may be made only if permission (or, in a case arising under the
law of Northern Ireland, leave) to make it has been obtained from the tribunal.
(3)
The tribunal may not grant permission (or leave) to make the application
40
unless it considers that the applicant has a sufficient interest in the matter to
which the application relates.
(4)
Subsection (5) applies where the tribunal considers—
(a)
that there has been undue delay in making the application, and

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
14

(b)
that granting the relief sought on the application would be likely to
cause substantial hardship to, or substantially prejudice the rights of,
any person or would be detrimental to good administration.
(5)
The tribunal may—
(a)
refuse to grant permission (or leave) for the making of the application;
5
(b)
refuse to grant any relief sought on the application.
(6)
The tribunal may award to the applicant damages, restitution or the recovery
of a sum due if—
(a)
the application includes a claim for such an award arising from any
matter to which the application relates, and
10
(b)
the tribunal is satisfied that such an award would have been made by
the High Court if the claim had been made in an action begun in the
High Court by the applicant at the time of making the application.
(7)
An award under subsection (6) may be enforced as if it were an award of the
High Court.
15
(8)
Where—
(a)
the tribunal refuses to grant permission (or leave) to apply for relief
under section 15(1),
(b)
the applicant appeals against that refusal, and
(c)
the Court of Appeal grants the permission (or leave),
20

the Court of Appeal may go on to decide the application for relief under section
15(1).
(9)
Subsections (4) and (5) do not prevent Tribunal Procedure Rules from limiting
the time within which applications may be made.
17
Quashing orders under section 15(1): supplementary provision
25
(1)
If the Upper Tribunal makes a quashing order under section 15(1)(c) in respect
of a decision, it may in addition—
(a)
remit the matter concerned to the court, tribunal or authority that made
the decision, with a direction to reconsider the matter and reach a
decision in accordance with the findings of the Upper Tribunal, or
30
(b)
substitute its own decision for the decision in question.
(2)
The power conferred by subsection (1)(b) is exercisable only if—
(a)
the decision in question was made by a court or tribunal,
(b)
the decision is quashed on the ground that there has been an error of
law, and
35
(c)
without the error, there would have been only one decision that the
court or tribunal could have reached.
(3)
Unless the Upper Tribunal otherwise directs, a decision substituted by it under
subsection (1)(b) has effect as if it were a decision of the relevant court or
tribunal.
40
18
Limits of jurisdiction under section 15(1)
(1)
This section applies where an application made to the Upper Tribunal seeks
(whether or not alone)—
(a)
relief under section 15(1), or

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
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(b)
permission (or, in a case arising under the law of Northern Ireland,
leave) to apply for relief under section 15(1).
(2)
If Conditions 1 to 4 are met, the tribunal has the function of deciding the
application.
(3)
If the tribunal does not have the function of deciding the application, it must
5
by order transfer the application to the High Court.
(4)
Condition 1 is that the application does not seek anything other than—
(a)
relief under section 15(1);
(b)
permission (or, in a case arising under the law of Northern Ireland,
leave) to apply for relief under section 15(1);
10
(c)
an award under section 16(6);
(d)
interest;
(e)
costs.
(5)
Condition 2 is that the application does not call into question anything done by
the Crown Court.
15
(6)
Condition 3 is that the application falls within a class specified for the purposes
of this subsection in a direction given in accordance with Part 1 of Schedule 2
to the Constitutional Reform Act 2005 (c. 4).
(7)
The power to give directions under subsection (6) includes—
(a)
power to vary or revoke directions made in exercise of the power, and
20
(b)
power to make different provision for different purposes.
(8)
Condition 4 is that the judge presiding at the hearing of the application is
either—
(a)
a judge of the High Court or the Court of Appeal in England and Wales
or Northern Ireland, or a judge of the Court of Session, or
25
(b)
such other persons as may be agreed from time to time between the
Lord Chief Justice, the Lord President, or the Lord Chief Justice of
Northern Ireland, as the case may be, and the Senior President of
Tribunals.
(9)
Where the application is transferred to the High Court under subsection (3)—
30
(a)
the application is to be treated for all purposes as if it—
(i)
had been made to the High Court, and
(ii)
sought things corresponding to those sought from the tribunal,
and
(b)
any steps taken, permission (or leave) given or orders made by the
35
tribunal in relation to the application are to be treated as taken, given
or made by the High Court.
(10)
Rules of court may make provision for the purpose of supplementing
subsection (9).
(11)
The provision that may be made by Tribunal Procedure Rules about
40
amendment of an application for relief under section 15(1) includes, in
particular, provision about amendments that would cause the application to
become transferrable under subsection (3).
(12)
For the purposes of subsection (9)(a)(ii), in relation to an application
transferred to the High Court in Northern Ireland—
45

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
16

(a)
an order of mandamus shall be taken to correspond to a mandatory
order under section 15(1)(a),
(b)
an order of prohibition shall be taken to correspond to a prohibiting
order under section 15(1)(b), and
(c)
an order of certiorari shall be taken to correspond to a quashing order
5
under section 15(1)(c).
19
Transfer of judicial review applications from High Court
(1)
In the Supreme Court Act 1981 (c. 54), after section 31 insert—
“31A
Transfer of judicial review applications to Upper Tribunal
(1)
This section applies where an application is made to the High Court—
10
(a)
for judicial review, or
(b)
for permission to apply for judicial review.
(2)
If Conditions 1, 2, 3 and 4 are met, the High Court must by order
transfer the application to the Upper Tribunal.
(3)
If Conditions 1, 2 and 4 are met, but Condition 3 is not, the High Court
15
may by order transfer the application to the Upper Tribunal if it
appears to the High Court to be just and convenient to do so.
(4)
Condition 1 is that the application does not seek anything other than—
(a)
relief under section 31(1)(a) and (b);
(b)
permission to apply for relief under section 31(1)(a) and (b);
20
(c)
an award under section 31(4);
(d)
interest;
(e)
costs.
(5)
Condition 2 is that the application does not call into question anything
done by the Crown Court.
25
(6)
Condition 3 is that the application falls within a class specified under
section 18(6) of the Tribunals, Courts and Enforcement Act 2007.
(7)
Condition 4 is that the application does not call into question any
decision made under—
(a)
the Immigration Acts,
30
(b)
the British Nationality Act 1981 (c. 61),
(c)
any instrument having effect under an enactment within
paragraph (a) or (b), or
(d)
any other provision of law for the time being in force which
determines British citizenship, British overseas territories
35
citizenship, the status of a British National (Overseas) or British
Overseas citizenship.”
(2)
In the Judicature (Northern Ireland) Act 1978 (c. 23), after section 25 insert—
“25A
Transfer of judicial review applications to Upper Tribunal
(1)
This section applies where an application is made to the High Court—
40
(a)
for judicial review, or
(b)
for leave to apply for judicial review.

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
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(2)
If Conditions 1, 2, 3 and 4 are met, the High Court must by order
transfer the application to the Upper Tribunal.
(3)
If Conditions 1, 2 and 4 are met, but Condition 3 is not, the High Court
may by order transfer the application to the Upper Tribunal if it
appears to the High Court to be just and convenient to do so.
5
(4)
Condition 1 is that the application does not seek anything other than—
(a)
relief under section 18(1)(a) to (e);
(b)
leave to apply for relief under section 18(1)(a) to (e);
(c)
an award under section 20;
(d)
interest;
10
(e)
costs.
(5)
Condition 2 is that the application does not call into question anything
done by the Crown Court.
(6)
Condition 3 is that the application falls within a class specified under
section 18(6) of the Tribunals, Courts and Enforcement Act 2007.
15
(7)
Condition 4 is that the application does not call into question any
decision made under—
(a)
the Immigration Acts,
(b)
the British Nationality Act 1981 (c. 61),
(c)
any instrument having effect under an enactment within
20
paragraph (a) or (b), or
(d)
any other provision of law for the time being in force which
determines British citizenship, British overseas territories
citizenship, the status of a British National (Overseas) or British
Overseas citizenship.”
25
(3)
Where an application is transferred to the Upper Tribunal under 31A of the
Supreme Court Act 1981 (c. 54) or section 25A of the Judicature (Northern
Ireland) Act 1978 (c. 23) (transfer from the High Court of judicial review
applications)—
(a)
the application is to be treated for all purposes as if it—
30
(i)
had been made to the tribunal, and
(ii)
sought things corresponding to those sought from the High
Court,
(b)
the tribunal has the function of deciding the application, even if it does
not fall within a class specified under section 18(6), and
35
(c)
any steps taken, permission given, leave given or orders made by the
High Court in relation to the application are to be treated as taken,
given or made by the tribunal.
(4)
Where—
(a)
an application for permission is transferred to the Upper Tribunal
40
under section 31A of the Supreme Court Act 1981 and the tribunal
grants permission, or
(b)
an application for leave is transferred to the Upper Tribunal under
section 25A of the Judicature (Northern Ireland) Act 1978 and the
tribunal grants leave,
45

the tribunal has the function of deciding any subsequent application brought
under the permission or leave, even if the subsequent application does not fall
within a class specified under section 18(6).

Tribunals, Courts and Enforcement Bill [HL]
Part 1 — Tribunals and Inquiries
Chapter 2 — First-tier Tribunal and Upper Tribunal
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(5)
Tribunal Procedure Rules may make further provision for the purposes of
supplementing subsections (3) and (4).
(6)
For the purposes of subsection (3)(a)(ii), in relation to an application
transferred to the Upper Tribunal under section 25A of the Judicature
(Northern Ireland) Act 1978 (c. 23)—
5
(a)
a mandatory order under section 15(1)(a) shall be taken to correspond
to an order of mandamus,
(b)
a prohibiting order under section 15(1)(b) shall be taken to correspond
to an order of prohibition, and
(c)
a quashing order under section 15(1)(c) shall be taken to correspond to
10
an order of certiorari.
20
Transfer of judicial review applications from the Court of Session
(1)
Where an application is made to the supervisory jurisdiction of the Court of
Session, the Court—
(a)
must, if Conditions 1, 2 and 4 are met, and
15
(b)
may, if Conditions 1, 3 and 4 are met, but Condition 2 is not,

by order transfer the application to the Upper Tribunal.
(2)
Condition 1 is that the application does not seek anything other than an
exercise of the supervisory jurisdiction of the Court of Session.
(3)
Condition 2 is that the application falls within a class specified for the purposes
20
of this subsection by act of sederunt made with the consent of the Lord
Chancellor.
(4)
Condition 3 is that the subject matter of the application is not a devolved
Scottish matter.
(5)
Condition 4 is that the application does not call into question any decision
25
made under—
(a)
the Immigration Acts,
(b)
the British Nationality Act 1981 (c. 61),
(c)
any instrument having effect under an enactment within paragraph (a)
or (b), or
30
(d)
any other provision of law for the time being in force which determines
British citizenship, British overseas territories citizenship, the status of
a British National (Overseas) or British Overseas citizenship.
(6)
There may not be specified under subsection (3) any class of application which
includes an application the subject matter of which is a devolved Scottish
35
matter.
(7)
For the purposes of this section, the subject matter of an application is a
devolved Scottish matter if it—
(a)
concerns the exercise of functions in or as regards Scotland, and
(b)
does not relate to a reserved matter within the meaning of the Scotland
40
Act 1998 (c. 46).
(8)
In subsection (2), the reference to the exercise of the supervisory jurisdiction of
the Court of Session includes a reference to the making of any order in
connection with or in consequence of the exercise of that jurisdiction.