Despite all the pressures of the COVID-19 pandemic, over the past few months the government has committed to exploring major reforms of the public law system, having conducted high-profile consultations into both judicial review
and the operation of the Human Rights Act 1998
. Far less attention, however, has been paid to an additional consultation, concerning the operation of appeals from tribunals to the Court of Appeal, which ran from 30 November 2020 to 11 January 2021. While less headline-grabbing, the proposed reforms raise a number of pressing concerns.
The government’s consultation (cumbrously titled Proposals for reforms to arrangements for obtaining permission to appeal from the Upper Tribunal to the Court of Appeal
) contains two separate proposals for narrowing appeal rights. The first is to limit the circumstances under which a ‘second appeal’ from a tribunal decision can be brought before the Court of Appeal. Currently, permission requires that an appeal has a ‘real prospect of success’ and ‘raises an important point of principle of practice’, or where there is some other ‘compelling reason’ in play.1Civil Procedure Rules 1998 (CPR) r52.7.
The second relates to judicial review applications that are considered to be ‘totally without merit’ by a tribunal. Currently, such a determination can be reviewed by the Court of Appeal,2CPR r23.12.
but the government wishes to remove this possibility, or replace it with the possibility of a second review by a tribunal judge. Both proposals, according to the government, are necessary in order to improve the efficacy of the court system, save time and resources, and weed out unmeritorious cases.
Public Law Project is opposing the proposed changes for a number of reasons, set out in full in our consultation response, which can be viewed on our website
. We think that reform is unnecessary, that tribunal appeals do not operate as a significant drain on the system, and that the data on which the government relies in this respect does not show otherwise. We also doubt whether the proposed changes will be effective in practice. Fundamentally, however, the proposals risk creating serious injustice.
The right to appeal a decision is of utmost importance as it provides a way for incorrect understandings of the law to be identified, challenged and corrected. While tribunal judges are, of course, highly qualified, mistakes and oversights are sometimes made and appeals safeguard against this possibility. As the Supreme Court put it in R (Cart) v Upper Tribunal  UKSC 28
; August 2011 Legal Action
[N]o system of decision-making is perfect or infallible. There is always the possibility that a judge at any level will get it wrong. Clearly there should always be the possibility that another judge can look at the case and check for error. That second judge should always be someone with more experience or expertise than the judge who first heard the case … (para 56).
Of course, judges should always strive to decide a case correctly and fairly. But it is particularly important that tribunal judges do not fall into error because with many of the cases they hear, such as petitions against deportation, their decisions may have consequences that are both severe and potentially irreversible. Further, some decisions of the Upper Tribunal, such as test cases and those setting out country guidance, are generally followed by tribunals in subsequent cases, so any corrections must be made by a higher court.
This means that the Court of Appeal can be called upon to ensure that entrenched practices comply with the law and that the rights of individuals are respected. Access to appeals facilitates the rule of law and guards against injustice.
We should be extremely careful if seeking to limit these rights, and the government’s changes do just that. Limiting further an already narrow test for ‘second appeals’, especially on the basis of public interest, would risk great injustice on an individual level going uncorrected; removing the possibility of appealing a ‘totally without merit’ determination has obvious dangers and insular appeals prevent decisions from being considered afresh by a more senior, less constrained judge. Crucially, shutting out potentially meritorious cases from the appellate jurisdiction may prevent the judiciary from being able to develop and clarify the law, and fulfil its constitutional duty of holding public authorities to account.
The government is entitled to consider legal reforms that improve the efficacy of the senior courts. However, there are ways that this can be achieved – such as better resourcing for the system and improving access to legal assistance – none of which raise the concerns the current proposals do. While speed and efficiency are important, we should heed Lord Dyson’s words in Lord Chancellor v Detention Action  EWCA Civ 840
at para 22: ‘Speed and efficiency do not trump justice and fairness. Justice and fairness are paramount.’