Commentary on provisions of Act Part 1: Judicial review Section 2: Exclusion of review of Upper Tribunal’s permission-to-appeal decisions
This section makes certain decisions of the Upper Tribunal final, and stipulates that they are not subject to review by any other court. This will operate subject to certain exceptions.
	Subsection (1) inserts a new section 11A into the Tribunals, Courts and Enforcement Act 2007 ("TCEA 2007").
	Subsection (1) of the new section 11A sets out which decisions of the Upper Tribunal are affected by this section. The section will only apply to decisions by the Upper Tribunal to refuse permission to appeal further to applications under Section 11(4)(b) of the TCEA 2007. This means that the following decisions are not affected by the section:
decisions of the Upper Tribunal in relation to applications for permission (or leave) to appeal from bodies other than the First-tier Tribunal;
decisions of the Upper Tribunal which do not relate to applications for permission (or leave) to appeal under section 11(4)(b).
	Subsection (2) of the new section 11A provides that no other court can question or set aside the Upper Tribunal’s decision about permission (or leave) to appeal. It should be noted that subsection (7) of new section 11A defines "decisions" as including "purported decisions’". This means that even decisions which might otherwise be regarded as a nullity, are caught by the new section.
	Subsection (3) of new section 11A re-iterates and further clarifies the extent of the rule. Subsection (3)(a) provides that, if the Upper Tribunal were to make an error in reaching its decision on permission (or leave) to appeal, this does not mean that the Upper Tribunal has acted beyond its powers. Such decisions will therefore still be caught by the rule. Subsection (3)(b) emphasises the effect of subsection (2) in preventing the making of an application to a court of supervisory jurisdiction about the decision, as the jurisdiction of that court does not extend to these decisions.
	Subsection (4) of the new section 11A provides for specific exceptions to subsections (2) and (3), that is, certain circumstances where a challenge can still be brought against decisions of the Upper Tribunal on applications for permission (or leave) to appeal. This includes where the Upper Tribunal did not have jurisdiction, whether because it did not have before it a valid application under section 11(4)(b) (subsection (4)(a)), or because the Tribunal itself was not properly constituted to carry out its task (subsection (4)(b)). Subsection (4)(c) covers circumstances where the Upper Tribunal acted in bad faith or in such procedurally defective ways as amounts to fundamental breaches of the principles of natural justice. Fundamental breaches of the principles of natural justice include such things as the decision being affected by bias or corruption. All these scenarios would be very unlikely to arise, but it is important to ensure that such decisions would still be subject to review.
	Subsection (5) of new section 11A makes provision for an exception in cases where the First-tier Tribunal’s jurisdiction over the underlying matter in question was or could have been created by an Act of the Scottish Parliament or an Act of the Northern Ireland Assembly passed without consent of the Secretary of State. This means that Upper Tribunal decisions about permission (or leave) to appeal are reviewable when the underlying decision, considered by the First-tier Tribunal, is a kind of decision, provision about which would be within legislative competence of the Scottish Parliament or Northern Ireland Assembly.
	Subsection (6) of the new section 11A clarifies that nothing in the section affects the normal position in regards to judicial review challenges to substantive decisions of the First-tier Tribunal. The subsection means that the court of supervisory jurisdiction should not alter its standard approach of refusing permission to bring a judicial review of an inferior court or tribunal’s decision, where an alternative remedy exists. Nothing in the section changes the fact that an alternative remedy (i.e. application for permission or leave to appeal to the Upper Tribunal) is available in relation to substantive decisions of the First-tier Tribunal.
	Subsection (7) of the new section 11A defines "decision" for the purposes of this section, so that it includes "purported decision" meaning that regardless of whether a decision is a nullity, the provisions in this section still apply. "The supervisory jurisdiction" is also defined, making clear to which courts this refers.
	Subsection (2) of the section sets out the transitional arrangements for new section 11A, and provides that decisions of the Upper Tribunal made before the section comes into force are not affected.
Example (1): Review of the Upper Tribunal not permitted
A claimant fails in a claim before the First-tier Tribunal. The claim relates to a non-devolved matter. The claimant applies to the First-tier Tribunal for permission to appeal the decision to the Upper Tribunal. The First-tier Tribunal refuses permission. The claimant then makes a valid application for permission to appeal directly to the Upper Tribunal under section 11(4)(b) of the TCEA 2007. The Upper Tribunal, properly constituted, refuses permission to appeal. The claimant thinks the Upper Tribunal’s decision was wrong. The Upper Tribunal did not act in bad faith, or fundamentally breach the principles of natural justice.
The effect of this section is that the claimant cannot seek to challenge the Upper Tribunal’s decision in any court, including by way of an application for judicial review.
Example (2): Review of the Upper Tribunal permitted
A claimant fails in a claim before the First-tier Tribunal. The claim relates to a non-devolved matter. The claimant applies to the First-tier Tribunal for permission to appeal to the Upper Tribunal. The First-tier Tribunal refuses permission. The claimant then makes a valid application for permission to appeal directly to the Upper Tribunal under section (11)(4)(b) of the TCEA 2007. The Upper Tribunal, properly constituted, refuses permission to appeal. In the course of adjudicating on the application, the Upper Tribunal judge refuses to hear submissions from the claimant for no good reason.
The effect of this section is that the claimant can seek to challenge the Upper Tribunal’s decision in another court, including by way of an application for judicial review, because the Upper Tribunal acted in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.