R (Unison) v Intersection of judicial [68] “A the heart of the concept
Lord review and the rule of law of the rule of law is the idea that
Chancellor society is governed by law …
[2017] UKSC [courts] ensur[e] that the
51[2017] 3 executive branch of government
W.L.R. 409 [68] carries out its functions in
Lord Reed accordance with the law.” –
Judicial Review upholds the rule
of law.
Facts: The Supreme Court had to
determine whether fees charged
under the Employment Tribunals
and the Employment Appeal
Tribunal Fees Order 2013 were
unlawful via judicial review. The
Order, which had been made by
the Lord Chancellor in the
exercise of statutory powers,
introduced a fees regime for
bringing and continuing claims
in employment tribunals and the
Employment Appeal Tribunal.
Under the regime, claimants had
to pay an issue and hearing fee,
unless otherwise exempted. The
poorest claimants qualified for
full remission of the fees and, in
exceptional circumstances, the
Lord Chancellor could exercise
his discretionary power to remit
fees paid by other claimants.
Since the introduction of the
fees, there had been a 66-70%
reduction in the number of
claims brought in employment
tribunals. The appellant trade
union argued that the fees
interfered unjustifiably with the
right of access to justice under
both the common law and EU
law, and discriminated
unlawfully against women and
other protected groups who
typically brought "Type B"
claims which attracted higher
fees. Appeal allowed and held:
The constitutional right of
access to the courts was
inherent in the rule of law.
Courts existed in order to ensure
, that the law was applied and
enforced. In order for the courts
to perform that function, people,
in principle, had to have
unimpeded access to them, The
Order would be ultra vires if
there was a real risk that
persons would effectively be
prevented from having access to
justice. The fall in the number of
claims since the introduction of
the fees had been so sharp,
substantial and sustained that it
warranted the conclusion that a
significant number of people
who otherwise would have
brought claims had found the
fees to be unaffordable.
R (Cart) v The Intersection of judicial “The scope of judicial review is
Upper Tribunal review and the rule of law an artefact of the common law
[2011] UKSC whose object is to maintain the
28 [2011] 4 All rule of law.”
ER 127 [37]
Lady Hale Facts: In conjoined appeals, the
appellants (C and R) appealed
against decisions and dismissing
their applications for judicial
review of refusals of permission
to appeal by the Upper Tribunal.
C and R had failed in appeals to
the social security and child
support and the immigration and
asylum chambers of the First-
tier Tribunal respectively and
had been refused permission to
appeal to the Upper Tribunal by
both the First-
tier Tribunal and Upper Tribunal.
C's claim for judicial review of
the refusal of permission by
the Upper Tribunal was
dismissed by the Divisional
Court. His appeal to the Court of
Appeal was also dismissed. The
Court of Appeal held that
decisions of
the Upper Tribunal were subject
to judicial review only on the
grounds of outright excess of
jurisdiction or the denial of
procedural justice. R also
claimed judicial review of
,the Upper Tribunal's decision.
The High Court followed the
approach of the Court of Appeal
in dismissing his claim but
granted a certificate for his
appeal to be joined with C's. The
issue to be determined was the
scope for judicial review by the
High Court of unappealable
decisions of the Upper Tribunal.
Appeal dismissed and held:
There was nothing in
the Tribunals, Courts and
Enforcement Act 2007 which
purported to oust or exclude
judicial review of the
unappealable decisions of
the Upper Tribunal. It would also
be completely inconsistent with
the new unified structure
introduced by the Act to
distinguish between the scope of
judicial review in the various
jurisdictions included in that
structure. The scope of judicial
review was an artefact of the
common law whose object was
to maintain the rule of law; the
question was what machinery
was necessary and
proportionate to keep errors of
law to a minimum and, in
particular, whether there should
be any jurisdiction in which such
errors were immune from
scrutiny in the higher
courts. There were three
possible approaches. First, that
the scope of judicial review
should be restricted to cases
where there was an outright
excess of jurisdiction and the
denial of fundamental justice;
secondly, that nothing had
changed following the
introduction of the Act and
judicial review of refusals of
leave to appeal from
one tribunal to another had
always been available; thirdly,
that judicial review should be
limited to the grounds on which
permission to make a second-
tier appeal to the Court of
, Appeal would be granted,
namely where an important
point of principle or practice was
raised or there was some other
compelling reason for the case
to be heard. While the
introduction of the
new tribunal system might
justify a more restricted
approach, the Court of Appeal's
approach in C's case was too
narrow and would leave the
possibility that serious errors of
law affecting large numbers of
people would go uncorrected .
However, the courts' resources
were not unlimited and the High
Court and Court of Appeal had
been overwhelmed with judicial
review applications in
immigration and asylum cases
until the introduction of
statutory reviews. The question
was what level of independent
scrutiny was required by the rule
of law.
R (Beeson) v Intersection of judicial “The basis of judicial review
Dorset County review and the rule of law rests in the [common law] free-
Council [2002] standing principle that every
EWCA Civ action of a public body must be
1812 [2003] justified by law”.
C.L.Y. 4104
[17] Laws LJ Facts: The Secretary of State for
Health appealed as an
interested party from part of a
judgment ([2001] EWHC Admin
986, [2002] H.R.L.R. 15)
quashing the local authority's
decision that B had deprived
himself of his house for the
purpose of decreasing his
liability to residential care fees.
The council treated the house,
which B had transferred by deed
of gift to his son, as notional
capital for the purposes of
the National Assistance
(Assessment of Resources)
Regulations 1992 Reg.25. B's
son invoked the complaints
procedure which resulted in a
review by a panel. The panel
recommended that the
complaint be rejected, and the
Lord review and the rule of law of the rule of law is the idea that
Chancellor society is governed by law …
[2017] UKSC [courts] ensur[e] that the
51[2017] 3 executive branch of government
W.L.R. 409 [68] carries out its functions in
Lord Reed accordance with the law.” –
Judicial Review upholds the rule
of law.
Facts: The Supreme Court had to
determine whether fees charged
under the Employment Tribunals
and the Employment Appeal
Tribunal Fees Order 2013 were
unlawful via judicial review. The
Order, which had been made by
the Lord Chancellor in the
exercise of statutory powers,
introduced a fees regime for
bringing and continuing claims
in employment tribunals and the
Employment Appeal Tribunal.
Under the regime, claimants had
to pay an issue and hearing fee,
unless otherwise exempted. The
poorest claimants qualified for
full remission of the fees and, in
exceptional circumstances, the
Lord Chancellor could exercise
his discretionary power to remit
fees paid by other claimants.
Since the introduction of the
fees, there had been a 66-70%
reduction in the number of
claims brought in employment
tribunals. The appellant trade
union argued that the fees
interfered unjustifiably with the
right of access to justice under
both the common law and EU
law, and discriminated
unlawfully against women and
other protected groups who
typically brought "Type B"
claims which attracted higher
fees. Appeal allowed and held:
The constitutional right of
access to the courts was
inherent in the rule of law.
Courts existed in order to ensure
, that the law was applied and
enforced. In order for the courts
to perform that function, people,
in principle, had to have
unimpeded access to them, The
Order would be ultra vires if
there was a real risk that
persons would effectively be
prevented from having access to
justice. The fall in the number of
claims since the introduction of
the fees had been so sharp,
substantial and sustained that it
warranted the conclusion that a
significant number of people
who otherwise would have
brought claims had found the
fees to be unaffordable.
R (Cart) v The Intersection of judicial “The scope of judicial review is
Upper Tribunal review and the rule of law an artefact of the common law
[2011] UKSC whose object is to maintain the
28 [2011] 4 All rule of law.”
ER 127 [37]
Lady Hale Facts: In conjoined appeals, the
appellants (C and R) appealed
against decisions and dismissing
their applications for judicial
review of refusals of permission
to appeal by the Upper Tribunal.
C and R had failed in appeals to
the social security and child
support and the immigration and
asylum chambers of the First-
tier Tribunal respectively and
had been refused permission to
appeal to the Upper Tribunal by
both the First-
tier Tribunal and Upper Tribunal.
C's claim for judicial review of
the refusal of permission by
the Upper Tribunal was
dismissed by the Divisional
Court. His appeal to the Court of
Appeal was also dismissed. The
Court of Appeal held that
decisions of
the Upper Tribunal were subject
to judicial review only on the
grounds of outright excess of
jurisdiction or the denial of
procedural justice. R also
claimed judicial review of
,the Upper Tribunal's decision.
The High Court followed the
approach of the Court of Appeal
in dismissing his claim but
granted a certificate for his
appeal to be joined with C's. The
issue to be determined was the
scope for judicial review by the
High Court of unappealable
decisions of the Upper Tribunal.
Appeal dismissed and held:
There was nothing in
the Tribunals, Courts and
Enforcement Act 2007 which
purported to oust or exclude
judicial review of the
unappealable decisions of
the Upper Tribunal. It would also
be completely inconsistent with
the new unified structure
introduced by the Act to
distinguish between the scope of
judicial review in the various
jurisdictions included in that
structure. The scope of judicial
review was an artefact of the
common law whose object was
to maintain the rule of law; the
question was what machinery
was necessary and
proportionate to keep errors of
law to a minimum and, in
particular, whether there should
be any jurisdiction in which such
errors were immune from
scrutiny in the higher
courts. There were three
possible approaches. First, that
the scope of judicial review
should be restricted to cases
where there was an outright
excess of jurisdiction and the
denial of fundamental justice;
secondly, that nothing had
changed following the
introduction of the Act and
judicial review of refusals of
leave to appeal from
one tribunal to another had
always been available; thirdly,
that judicial review should be
limited to the grounds on which
permission to make a second-
tier appeal to the Court of
, Appeal would be granted,
namely where an important
point of principle or practice was
raised or there was some other
compelling reason for the case
to be heard. While the
introduction of the
new tribunal system might
justify a more restricted
approach, the Court of Appeal's
approach in C's case was too
narrow and would leave the
possibility that serious errors of
law affecting large numbers of
people would go uncorrected .
However, the courts' resources
were not unlimited and the High
Court and Court of Appeal had
been overwhelmed with judicial
review applications in
immigration and asylum cases
until the introduction of
statutory reviews. The question
was what level of independent
scrutiny was required by the rule
of law.
R (Beeson) v Intersection of judicial “The basis of judicial review
Dorset County review and the rule of law rests in the [common law] free-
Council [2002] standing principle that every
EWCA Civ action of a public body must be
1812 [2003] justified by law”.
C.L.Y. 4104
[17] Laws LJ Facts: The Secretary of State for
Health appealed as an
interested party from part of a
judgment ([2001] EWHC Admin
986, [2002] H.R.L.R. 15)
quashing the local authority's
decision that B had deprived
himself of his house for the
purpose of decreasing his
liability to residential care fees.
The council treated the house,
which B had transferred by deed
of gift to his son, as notional
capital for the purposes of
the National Assistance
(Assessment of Resources)
Regulations 1992 Reg.25. B's
son invoked the complaints
procedure which resulted in a
review by a panel. The panel
recommended that the
complaint be rejected, and the
