Reclaiming Motion in Petition for Judicial Review by Ragbir Singh and others (Court of Session)

Factual and Procedural Background

This opinion arises from a reclaiming motion appealing an interlocutor of the Lord Ordinary dated 14 December 2023, which refused as incompetent a petition for judicial review of a decision by the Upper Tribunal (UT) refusing leave to appeal against its refusal of the petitioners' asylum claims. The petitioners challenge the lawfulness of section 11A of the Tribunals, Courts and Enforcement Act 2007, which restricts the grounds upon which judicial review can be sought. The petitioners are a Sikh family claiming to be Afghan nationals who sought asylum in the United Kingdom. The primary factual dispute concerned their nationality, with the respondent asserting they were Indian nationals. The First-tier Tribunal (FtT) and the UT both found against the petitioners on credibility and evidential grounds, rejecting their claims. The petitioners' judicial review challenge focuses on the competence of the petition under section 11A of the 2007 Act and constitutional arguments regarding the Act of Union 1707 and the rule of law.

Legal Issues Presented

1. Whether section 11A of the Tribunals, Courts and Enforcement Act 2007 is compatible with Article XIX of the Act of Union 1707, which preserves the authority of the Court of Session.
2. Whether section 11A is consistent with the rule of law, particularly regarding the supervisory jurisdiction of the Court of Session.
3. Whether the court has jurisdiction to review the lawfulness of section 11A in light of the constitutional protections purportedly afforded by the Act of Union 1707.

Arguments of the Parties

Petitioners' Arguments

• Section 11A effectively abolishes judicial review of UT decisions refusing permission to appeal, save for narrow exceptions, undermining the Court of Session's historic supervisory jurisdiction.
• Article XIX of the Treaty of Union 1707 guarantees the Court of Session's authority "in all time coming," which cannot be diminished except by regulation for the better administration of justice. Section 11A does not qualify as such regulation.
• The Acts of Union are justiciable and have constitutional status, requiring clear and express language for any repeal or qualification, which section 11A lacks.
• The statistical basis for the reforms underpinning section 11A, derived from the Independent Review of Administrative Law (IRAL), is flawed, particularly the success rates of judicial reviews, undermining the justification for restricting judicial review.
• The rule of law constrains parliamentary sovereignty, and section 11A breaches this constitutional principle by restricting judicial oversight unjustifiably.

Respondent's Arguments

• There is no breach of Article XIX; the authority of the Court of Session is preserved, subject to regulation for the better administration of justice, which section 11A represents.
• Parliamentary sovereignty is the foundational constitutional principle; the court must apply section 11A as enacted by the UK Parliament.
• Section 11A does not remove the supervisory jurisdiction of the Court of Session but restricts its scope in a manner consistent with legislative intent and prior case law.
• The IRAL statistics were acknowledged as erroneous for England, but the Government's own research showed a low success rate (~3%) justifying reform.
• The reforms address a mischief in immigration judicial reviews, balancing finality and judicial oversight appropriately within the legislature's powers.
• The petitioners fail to acknowledge the numerous amendments and partial repeals to the Acts of Union by subsequent UK legislation, including the partial repeal of Article XIX itself.
• The court should not interfere with parliamentary policy decisions on the scope of judicial review, especially where the UT and FtT are judicial bodies with expert judges.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
MacCormick v Lord Advocate 1953 SC 396	Limits on parliamentary sovereignty under Scottish constitutional law; justiciability of Treaty of Union Articles.	Confirmed that unlimited parliamentary sovereignty is a distinctively English principle; courts have limited jurisdiction to question parliamentary acts under the Treaty of Union.
Gibson v Lord Advocate 1975 SC 136	Non-justiciability of political matters; court’s role limited to adjudicating individual rights.	Supported that courts should not inquire into political utility of legislation, reinforcing limits on judicial review.
Eba v Advocate General 2012 SC (UKSC) 1	Scope of judicial review of Upper Tribunal decisions; supervisory jurisdiction of Court of Session.	Held that judicial review is available but limited to certain grounds; Parliament must expressly legislate to exclude supervisory jurisdiction.
R (Cart) v Upper Tribunal [2012] 1 AC 663	Judicial review grounds for unappealable Upper Tribunal decisions; balance between finality and supervisory jurisdiction.	Established a rational and proportionate restriction on judicial review, limiting grounds to important points of principle or practice.
R (LA (Albania)) v Upper Tribunal [2024] 1 WLR 1673	Effect and interpretation of section 11A of the 2007 Act; limits on judicial review.	Confirmed that section 11A restricts judicial review scope, restoring a pre-Anisminic test, and courts must give effect to clear statutory language.
R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491	Limits on ouster clauses and supervisory jurisdiction; rule of law constraints.	Clarified that total ousters of judicial review are impermissible; partial restrictions require clear words and do not necessarily breach the rule of law.
R (Jackson) v Attorney General [2006] 1 AC 262	Constitutional limits on parliamentary sovereignty; exceptional cases.	Referenced as authority for possible extreme limits on parliamentary sovereignty, but section 11A not comparable to such extremes.
Thoburn v Sunderland CC [2002] 3 WLR 247	Requirement of express words to repeal constitutional statutes.	Applied to argue that section 11A does not expressly repeal or qualify Article XIX and thus should not be construed as doing so implicitly.
Brown v Hamilton DC 1983 SC (HL) 1	Historical basis for supervisory jurisdiction of the Court of Session.	Supported petitioners' argument on the longstanding nature of the supervisory jurisdiction.
SA v Secretary of State for the Home Department 2019 SC 451	Application of second appeal test in judicial review permissions.	Referenced regarding the introduction of permission requirements and second appeal tests in Scottish tribunals.
Imperial Tobacco v Lord Advocate 2013 SC (UKSC) 153	Parliamentary sovereignty and statutory interpretation; no hierarchy of statutes.	Supported the principle that constitutional statutes do not enjoy special protection beyond requiring clear words for repeal.
R (Miller) v Secretary of State [2018] AC 61	Affirmation of parliamentary sovereignty despite constitutional developments.	Confirmed the continuing sovereignty of the UK Parliament, relevant to the interpretation of section 11A.

Court's Reasoning and Analysis

The court began by examining the historical and constitutional context of Article XIX of the Act of Union 1707, which preserves the authority of the Court of Session "in all time coming" but allows for regulations by the UK Parliament for the better administration of justice. The court acknowledged the complex academic and judicial debate over whether Article XIX imposes any constraint on parliamentary sovereignty, noting precedents such as MacCormick and Gibson which emphasize the limited justiciability of political questions and the primacy of parliamentary sovereignty.

The court considered the legislative framework established by the Tribunals, Courts and Enforcement Act 2007 and subsequent reforms, including the introduction of section 11A by the Judicial Review and Courts Act 2022. It analyzed the scope of judicial review over Upper Tribunal decisions, referencing the UK Supreme Court's decisions in Eba and R (Cart), which had limited but preserved supervisory jurisdiction subject to finality concerns.

The court addressed the petitioners' argument that section 11A unlawfully restricts judicial review and infringes Article XIX and the rule of law. It held that section 11A does not abolish supervisory jurisdiction but tailors its scope, consistent with parliamentary authority and prior jurisprudence. The court found no clear expression of intention to repeal or qualify Article XIX in section 11A and emphasized that any such constitutional limitation on parliamentary sovereignty would require express and unequivocal language, which was absent.

The court further reasoned that the principle of parliamentary sovereignty remains the foundational constitutional norm, and the evolving UK constitutional arrangements do not fix the constitutional rules as immutable since 1707. The court rejected the petitioners' challenge to the statistical basis for the reform, stating that policy decisions on judicial review scope are for Parliament, not the court.

Finally, the court concluded that the petitioners' claim that section 11A diminishes the authority of the Court of Session is incorrect. The supervisory jurisdiction continues, albeit with a restricted scope that balances finality and judicial oversight. The court declined to engage in a broader constitutional inquiry, consistent with established principles limiting judicial intervention in political matters.

Holding and Implications

The court repels the reclaiming motion and refuses to grant the remedies sought in the petition.

The decision affirms the validity and applicability of section 11A of the Tribunals, Courts and Enforcement Act 2007 as amended, confirming that it lawfully restricts the grounds upon which judicial review of Upper Tribunal permission refusals may be sought. The ruling upholds the principle of parliamentary sovereignty as paramount, clarifies the limited but continuing supervisory jurisdiction of the Court of Session, and dismisses the petitioners' constitutional challenges based on the Act of Union 1707 and the rule of law. No new precedent altering the scope of judicial review or constitutional doctrine was established; the court adhered to existing principles and prior authoritative decisions.