Clause 5 and Schedule 3: Judges and other members of the Upper Tribunal

65.           Clause 5 and Schedule 3 set out provisions relating to the membership of the Upper Tribunal.

Clause 5

66.           Clause 5 sets out those persons who are to be the judges and other members of the Upper Tribunal. Judges and members of an existing tribunal transferred into the Upper Tribunal under clause 31(2) will automatically become judges and members of the Upper Tribunal (and of the First-Tier Tribunal) without further appointment.

Schedule 3

67.           Paragraph 1(2) provides that a person is eligible for appointment as a judge of the Upper Tribunal if he has 7 years of post-qualification experience (this is a standard qualification for judicial office). In addition, a person may be appointed to the Upper Tribunal if, in the Lord Chancellor's opinion, he has gained experience in law which makes him as suitable for appointment as if he satisfied the 7-year qualification. Appointed judges of the Upper Tribunal are appointed by the Queen, on the recommendation of the Lord Chancellor. Appointment takes place after selection by the Judicial Appointments Commission.

68.           Paragraph 3 ensures that appointed and transferred-in judges and other members of the Upper Tribunal are protected by a prohibition on removal without the concurrence of the Lord Chief Justice of England and Wales, or if appropriate, the Lord President of the Court of Session or Lord Chief Justice of Northern Ireland.

69.           Paragraph 4 provides that appointed and transferred-in judges and other members of the Upper Tribunal appointed on a salaried basis have the further protection of a provision that they may be removed only by the Lord Chancellor on the ground of inability or misbehaviour.

70.           Both paragraphs 3 and 4 ensure that the independence of the tribunals is safeguarded.

71.           Paragraph 6 allows for judges of the Upper Tribunal to be made up partly of judges by request of the Senior President of Tribunals. Their deployment is to be under the control of the Senior President of Tribunals in conjunction with the Lord Chief Justice of England and Wales, or if appropriate, the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland.

72.           Paragraph 7 provides the Lord Chancellor with the power to appoint deputy judges of the Upper Tribunal. A person must have the same legal qualifications for appointment as a deputy judge as for appointment as a judge of the Upper Tribunal. The provision will enable the appointment to the Upper Tribunal of members with particular areas of expertise.

73.           Paragraph 9 ensures that the Senior President of Tribunals has responsibility for maintaining arrangements for the training, welfare and guidance of judges and other members of the Upper Tribunal.

74.           Paragraph 10 makes provision for judges and members of the Upper Tribunal to take the oath of allegiance and the judicial oath before the Senior President of Tribunals, or before an eligible person nominated by the Senior President. The requirement under paragraph 10 does not apply, however, in the case of transferred-in judges or transferred-in other members who have already taken the required oaths after accepting another office. Judges and members who carry out functions mainly or wholly in Northern Ireland may be required to take instead the oath, or the affirmation and declaration, set out in section 19 of the Justice (Northern Ireland) Act 2002.

Clause 6: Certain Judges who are also judges of First-tier Tribunal and Upper Tribunal

75.          Clause 6 lists which judges are to be considered as members of both the First-tier Tribunal and the Upper Tribunal within England, Wales, Scotland and Northern Ireland by virtue of their judicial office in the courts. Temporary office holders or deputies are not included within the list.

Clause 7: Chambers: Jurisdiction and Presidents and Schedule 4: Chambers and Chamber Presidents: further provision

76.           Clause 7 and Schedule 4 make provision for the organisation of the First-tier and Upper Tribunal into Chambers.

Clause 7

77.           Currently, many separate tribunals deal with different jurisdictions. When these tribunals are replaced by just two tribunals, it will be necessary for the jurisdictions in the new tribunals to have an organisational structure. Clause 7 provides for the establishment of boundaries for the jurisdictions within the First-tier and Upper Tribunal through the creation of chambers. The tribunals will bring together a wide range of specialist jurisdictions. It would dilute expertise and damage the service provided to the public if they were organised on the basis that all judges and members can deal with all kinds of case. Instead, jurisdictions will be grouped so that similar work is dealt with by judges and members with the relevant skills to deal with it. The chambers system is intended to be flexible so that changes can be made easily to those boundaries as the workload of the tribunals changes.

78.           Clause 7(1) makes provision for the structure of the tribunals to change over time: chambers may be merged and new chambers may be created. Clause 7(1) provides that the Lord Chancellor, with the concurrence of the Senior President, will have the power to create chambers by order. Clause 7(9) also provides for the Senior President and the Lord Chancellor to be able to vary by order the distribution of functions between the chambers in either the First-tier Tribunal or the Upper Tribunal. Chambers may be constructed on either a functional or a geographical basis, or a combination of the two.

79.          Clause 7(2) states that for each chamber within the First-tier Tribunal and Upper Tribunal there must be a person, or two persons, to preside over that chamber. A person cannot preside over more than one chamber within the First-tier Tribunal at the same time, and, likewise, cannot preside over more than one chamber within the Upper Tribunal at the same time, although they can preside over one chamber of the First-tier Tribunal and over one chamber of the Upper Tribunal at the same time (clause 7(3)).

80.           Clause 7(4) confers the title Chamber President on someone appointed to preside over a chamber.

Schedule 4

81.           Schedule 4 makes further provision about chambers and Chamber Presidents.

82.           Paragraphs 1 and 5 provide for the eligibility requirements to be a Chamber President or a Deputy Chamber President to be the same as those for appointment as a judge of the Upper Tribunal under Schedule 3.

83.          Paragraphs 2 and 3 deal with the appointment of Chamber Presidents. This is a judicial leadership role involving particular skills and experience and as such it is a separate appointment under the Bill. A Chamber President may (although need not) be drawn from the judiciary of the High Court or the Court of Session in Scotland or Court of Appeal in Northern Ireland. Before making an appointment from amongst the judges of those courts, the Lord Chancellor must first consult the Senior President of Tribunals. If the Lord Chancellor decides that the appointee should be from the senior judiciary, he must seek a nomination from the Lord Chief Justice of England and Wales or Northern Ireland, or the Lord President of the Court of Session. If a suitable candidate is not forthcoming, selection will be made by the JAC. The office of Chamber President will be added to Part 3 of Schedule 14 to the CRA 2005 for this purpose (Schedule 8 paragraph 66).

84.           Paragraph 4 permits a Chamber President to delegate functions of his office to any judge or other member of the First-Tier or Upper Tribunal, or to a member of staff.

85.          Paragraph 5 provides for the appointment of Deputy and Chamber Presidents. Deputy Presidents are appointed by the Lord Chancellor after consultation with the Senior President of Tribunals and are intended to be available to take on functions delegated to them by the Senior President or the Chamber President. The appointment process for Deputy Chamber Presidents mirrors that for Chamber Presidents.

86.           Paragraph 6 allows for the Senior President of Tribunals to appoint acting Presidents to cover a temporary vacancy in the office of Chamber President.

87.          Paragraph 7 places a duty on a Chamber President to make arrangements for the issuing of guidance (to for example judges, members and users) on changes to the law and practice relating to the jurisdictions assigned to his chamber.

88.           Paragraph 8 provides for persons appointed as Chamber Presidents, or Deputy or Acting Chamber Presidents, to take the oath of allegiance and the judicial oath before the Senior President of Tribunals, or before an eligible person nominated by the Senior President

89.           Paragraph 9 makes it clear that the assigning of judges and other members to the Tribunals is a function of the Senior President.

90.           Paragraphs 10 to 12 provide that Chamber Presidents and Deputy Chamber Presidents are deemed to be assigned to the Chamber(s) over which they hold office. Every other judge or member who is appointed under Schedule 2 or 3, or transferred in under clause 31(2), must be assigned to at least one Chamber. The process of assignment is intended to be flexible, informal and transparent. It is intended to be based upon the principle of deploying judges and members who have, or are able to acquire, the necessary skills and experience to meet identified business needs of the tribunal.

91.           Paragraph 13 obliges the Senior President to publish his policy on assignments of tribunal judges and members to chambers. This is intended to ensure openness and transparency of the system of assignment. The policy must ensure that appropriate use is made of the knowledge and experience of the judges and other members of the new tribunals. The policy must also ensure that a chamber which involves the application of the law of Scotland or Northern Ireland has enough members with knowledge and experience of those jurisdictions.

92.           To ensure appropriate executive accountability to Parliament for the process of assigning members, and to take into account any resource implications, the concurrence of the Lord Chancellor will be required before the policy can be adopted.

93.           Paragraph 14 provides for the allocation of members to hear individual cases. This is a judicial leadership function and therefore a matter for the Senior President. However, this is subject to the panel composition requirements set by the Lord Chancellor in an order under paragraph 15.

94.           Paragraph 15 requires the Lord Chancellor to set requirements, on a jurisdiction by jurisdiction basis, for the number of judges and other members to sit on particular appeals. This order is made by the Lord Chancellor to enable him to take account of resource implications, and to provide parliamentary scrutiny.

Clause 8: Senior President of Tribunals: power to delegate

95.          This clause enables the Senior President to delegate any of his functions to any Judge or member of the First-tier or Upper Tribunal or any member of staff, with the exception of his function under clause 7(9) of allocating tribunal functions between the First-tier and Upper Tribunals by order made with the concurrence of the Lord Chancellor.

Clauses 9 and 10: Review of decisions of First-tier and Upper Tribunals

96.           Clauses 9 and 10 provide powers for the First-tier and Upper Tribunals to review their own decisions without the need for a full onward appeal and, where the tribunal concludes that an error was made, to re-decide the matter. This is intended to capture decisions that are clearly wrong, so avoiding the need for an appeal. The power has been provided in the form of a discretionary power for the Tribunal so that only appropriate decisions are reviewed. This contrasts with cases where an appeal on a point of law is made, because, for instance, it is important to have an authoritative ruling.

97.           The First-tier Tribunal may review a decision made within the tribunal, either of its own initiative or on application by any party who has a right of appeal in respect of the decision. The tribunal has the power to correct accidental errors in the decision or in a record of the decision, amend the reasons given for the decision or set aside the decision. If a decision of the First-tier Tribunal is set aside by the First-tier Tribunal, it must either re-decide the matter concerned, or refer the matter to the Upper Tribunal. If the latter option is taken, the Upper Tribunal will then be responsible for re-deciding the matter.

98.           No decision of the First-tier Tribunal may be reviewed more than once, and a decision of the tribunal not to review a decision is not reviewable or appealable. Further challenge of a decision beyond the single review may only be made by appeal on a point of law or by judicial review.

99.           Clause 10 provides corresponding review powers for the Upper Tribunal - the only difference being that if the decision is set aside by the Upper Tribunal, it must then re-decide the matter concerned.

100.           Clauses 9(3) and 10(3) enable these wide review powers to be limited by making them subject to Tribunal Procedure Rules. They allow Rules to:

• exclude from review decisions of a description specified in the rules, whether by the tribunal of its own initiative, or on application by the parties;

• for decisions of a description specified in the rules, only allow review by the tribunal of its own initiative;

• specify in the rules the grounds on which an application for review may be brought and the grounds on which the tribunal can review of its own initiative. These could be the same or different grounds (e.g. there may be no specified grounds for the tribunal to review of its own initiative, but specified grounds upon which a party could make an application).

101.           In summary, an exclusion or ground specified in the Rules may apply only to applications from parties or also to the tribunal acting of its own initiative (e.g. rules may state that parties in social security cases are excluded from applying for review but the tribunal may review of its own initiative in such cases).

Clause 11: Right to appeal to Upper Tribunal

102.          A party to a case generally has a right of appeal on a point of law from the First-tier Tribunal to the Upper Tribunal. The right of appeal is subject to permission being given, following application by the party, by either the First-tier Tribunal or the Upper Tribunal. But there is no right of appeal against a decision which is "excluded". Excluded decisions are listed in subsection (5). The Lord Chancellor has a limited power to add to the list by order under subsection (5)(f).

103.           Subsection (6) limits that power. As a result, the power can be used for two purposes only. The first purpose is the preservation of existing appeal rights where those rights are, or include, something other than a right to appeal on a point of law. The second purpose is the preservation, in cases where there is currently no appeal right, of the existing position.

104.           Under subsection (8) the Lord Chancellor may by order define who is to be treated as a party to a case for the purposes of an appeal and therefore able to appeal. This is to cover cases where it is appropriate for a person who was neither the person making the original appeal to the First-tier Tribunal, nor the respondent to the original appeal, to make an onward appeal to the Upper Tribunal. This power is subject to affirmative resolution procedure (see clause 49).

Clause 12: Proceedings on appeal to Upper Tribunal

105.          This clause provides for what the Upper Tribunal can do when it determines that an error has been made on a point of law by the First-tier Tribunal. The Upper Tribunal may set aside the decision of the First-tier Tribunal; if it does it must either remit the case back to the First-tier Tribunal with directions for its reconsideration, or make the decision which it considers should have been made. If it takes the latter option it can make findings of fact. If the Upper Tribunal sends the case back to the First-tier Tribunal it may direct that a different panel reconsiders the case. The Upper Tribunal may also give procedural directions in relation to the case. If the Upper Tribunal decides that the error of law does not invalidate the decision of the First-tier Tribunal it can let that decision stand.

Clause 13: Right to appeal to Court of Appeal etc

106.           This clause provides the basis on which appeals can be made to the Court of Appeal in England and Wales or Northern Ireland or the Court of Session in Scotland. Appeals may be made on any point of law with permission either from the Upper Tribunal or the relevant appellate court (see subsection (11)). Certain decisions are excluded and the Lord Chancellor can under subsection (8)(f) add to the list, but subject to the same constraints as in clause 11.

107.           Those constraints are set out in subsection (9). As a result of the constraints, the power to add to the list of excluded decisions can be used for two purposes only. The first purpose is the preservation of existing appeal rights where those rights are, or include, something other than a right of appeal on a point of law. The second purpose is the preservation, in cases where there is currently no appeal right, of the existing position.

108.           Under subsection (6) the Lord Chancellor may by order restrict appeals to the Court of Appeal to cases where the court or the Upper Tribunal considers that the proposed appeal would raise some important point of principle or practice or that there is some other compelling reason for the appeal to be heard. The intention is to restrict second appeals on the same point unless there is wider public interest i.e. where a prospective appellant has had their case considered by both the First-tier Tribunal and the Upper Tribunal but wishes to pursue the case to the Court of Appeal. The criteria set out in this subsection are the same as the criteria applied by the Court of Appeal in considering second appeals from the High Court or county court (see the Access to Justice Act 1999, section 55(1)).

109.           The exercise of this power is subject to the affirmative resolution procedure. It does not apply to Scotland.

110.           Subsections (11) to (13) require the Upper Tribunal to specify the relevant appellate court (see subsection (11)). This provision is intended to deal with situations where it is not obvious which is the appropriate appellate court e.g. where an appellant has moved from Scotland to England or vice versa, or in order that linked cases can be dealt with in the same court.

Clause 14: Proceedings on appeal to Court of Appeal etc

111.           Where the appellate court determines that the Upper Tribunal has made an error of law, it has power to set aside the decision and either send the case back to the Upper Tribunal to be redecided (or, where the decision of the Upper Tribunal was on an appeal or reference from another tribunal or some other person, to that other tribunal or person, with direction for its reconsideration), or to make the decision which it considers the Upper Tribunal (or the other tribunal or person) should have made.

"Judicial Review" Clauses 15 to 21

112.           Tribunals currently have no powers of judicial review. Clauses 15 to 21 create a statutory regime which enables the Upper Tribunal to exercise judicial review powers in appropriate cases. This will allow the parties to have the benefit of the specialist expertise of the Upper Tribunal in cases similar to those which the Upper Tribunal routinely deals with in the exercise of its statutory appellate jurisdiction. These provisions do not alter the inherent or statutory jurisdiction of the High Court (as amended by clause 136) in any other respect.

113.           There will be two situations in which the Upper Tribunal will be able to use these powers in cases arising under the law of England and Wales or of Northern Ireland. The first is where a direction has been made by the Lord Chief Justice or his delegate with the agreement of the Lord Chancellor specifying a class of case to be dealt with by the Upper Tribunal rather than the High Court. The second is where the High Court orders the transfer of an individual case because it considers it just and convenient to do so in cases arising under the law of England and Wales or of Northern Ireland (but it will not be possible for cases to be transferred to the Upper Tribunal if they involve immigration or nationality matters).

Clause 15: Upper Tribunal's "judicial review" jurisdiction

114.           This clause confers power on the Upper Tribunal to grant certain forms of relief in the same way as the High Court on an application for judicial review. This clause needs to be read alongside clauses 16 and 18, which set out the circumstances in which the Upper Tribunal has jurisdiction.

115.           When it has jurisdiction, the Upper Tribunal may grant a mandatory order (an order that the respondent does something); a prohibiting order (an order that the respondent stops doing something); a quashing order (an order setting aside a decision or action as unlawful); a declaration; or an injunction. These remedies have the same effect as if made by the High Court. In determining whether to grant a remedy, the Tribunal must have regard to the principles of judicial review that would apply in the court from which jurisdiction has been delegated. Therefore the Upper Tribunal's powers are similar to those of the High Court.

Clause 16: Application for relief under clause 15(1)

116.           Because the Upper Tribunal's powers are similar to the High Courts in judicial review cases, the Upper Tribunal's powers are subject to similar conditions. Therefore it is necessary to have permission to apply to the Upper Tribunal to exercise its "judicial review" jurisdiction which may not be granted if the applicant has insufficient interest in the disputed matter. The Upper Tribunal may also refuse permission, or refuse a remedy, if there has been delay in making an application

117.           Awards made by the Upper Tribunal in exercising its 'judicial review' jurisdiction may be enforced as if they were an award of the High Court.

Clause 17: Quashing orders under clause 15(1): supplementary provision

118.           This clause makes further provision as to what the Upper Tribunal might do if it decides to grant a quashing order. If it quashes a decision it may also remit the matter for further consideration or substitute its own decision. The Upper Tribunal's powers are similar to the High Court's (see clause 136).

Clause 18: Limits of jurisdiction under clause 15(1)

119.           Clause 18 sets out the conditions that need to be met for the Upper Tribunal to have power to deal with an application under clause 15 for relief. The first condition is that the applicant in question is only seeking a remedy that the Upper Tribunal is able to grant. The second condition is that the application does not call into question anything done by the Crown Court. This is because it would be anomalous to give a tribunal, a superior court of record, supervisory powers over another superior court of record. The third condition is that the application falls within a specified class of case. The class is designated by a direction made by or on behalf of the Lord Chief Justice with the concurrence of the Lord Chancellor.

Clause 19: Transfer of judicial review applications from High Court

120.           Clause 19 amends the Supreme Court Act 1981 and the Judicature (Northern Ireland) Act 1978 to complement clauses 15 to 18. As a result, certain applications for judicial review will have to be transferred to the Upper Tribunal. In addition, the High Court may transfer to the Upper Tribunal individual cases that do not fall within a class specified under clause 18(6), but cases relating to immigration and nationality matters cannot be transferred in exercise of this discretionary transfer power.