The Ministry of Justice has published consultation proposals for reforms to how cases progress from the Upper Tribunal to the Court of Appeal. The consultation paper can be found here. Although apparently driven by cases from the Immigration and Asylum Chamber, the proposals will apply to all Chambers of the Upper Tribunal and so will, of course, encompass information rights cases in the Administrative Appeals Chamber.

There are two proposals advanced in the consultation. The first is relatively unimportant in the Information Rights jurisdiction: it concerns restrictions on claims for judicial review certified as totally without merit, which would now be reviewed by another UT judge, but could not be appealed to the Court of Appeal. Judicial review claims in the Upper Tribunal are very rare in the Information Rights context, and usually confined to procedural matters on which there is no right of appeal.

However, the second proposal is more generally applicable. It will limit the ability to appeal from the UT to the Court of Appeal, where permission is refused by the Upper Tribunal, to cases where there are “reasons of exceptional public interest” (whatever they may be). The aim is to curb second appeals and to preserve the workload of the Court of Appeal. (It is unclear how the rule would be drafted, but it appears that it is not intended to encompasses cases seen not all that unusually in the Information Rights context where the case is transferred to the Upper Tribunal who acts as the court of first instance.)

Of course, it may be observed that the Court of Appeal’s engagement with information rights appeals has rarely provided a great deal of assistance in the development or greater understanding of the law, but that is presumably an accident of case selection, and there is no doubt that it is important that the Upper Tribunal does not become a protected enclave, whose missteps are only occasionally capable of correction on appeal. Even the Upper Tribunal nods from time to time. Certainly, it is hard to characterise all the jurisdictions of the Upper Tribunal as imposing any material workload on the Court of Appeal. 

The consultation closes on 11 January 2021.

Christopher Knight