Case No. UKUT-00233-(IAC)

45. Does it necessarily follow from the existence of the Guidance Note that any decision to determine an error of law appeal without a hearing made between 23 March 2020 (when the Guidance Note was issued) and 20 November 2020 (when Fordham J’s judgment was handed down) rested on an error of law? 46. This question is not answered by Fordham J’s judgment in the JCWI case. His judgment focused on the objective meaning of paragraphs 9 to 16 of the Guidance Note, and in particular, paragraphs 14 to 16 of that document. He concluded that the Guidance Note established “an overall paper norm” which promoted determination of error of law appeals without a hearing as “usual” and determination of them at a hearing as “exceptional” . The Guidance Note was legally objectional on the Letts principle because it gave advice that was wrong in law and which would tend to encourage unlawful decisions. What was wrong with the Guidance Note was that it did not make sufficiently clear that any decision to determine an error of law appeal without a hearing had to be consistent with principles of fairness. See generally, per Fordham J at paragraphs 2.13, 2.5, and 7.11. In this regard the distinction Fordham J drew between the (unlawful) Guidance Note and the (lawful) Practice Direction is telling. At paragraph 3.7 of his judgment Fordham J said this. “3.7 … What the [Senior President of Tribunals] did in [the Practice Direction] was to promote paper determination, during the pandemic, wherever it is consistent with the overriding objective, the Human Rights Act 1998 (ECHR rights), basic requirements of common law procedural fairness, the natural justice principle, the open justice principle and the principle of legality. That course promoted the use of a power to decide cases on papers, but only where it was fair to do so. It meant no unfair paper determinations. That was promoting the e f‌f ective and ongoing operation of the machinery of justice, during an international pandemic, using resources in a proportionate way. It was fully consistent with the statutory duties applicable to the SPT when exercising statutory functions, including the function of making a practice direction. The SPT was communicating a change in practice (a new, contingent norm) in the exercise of an originating function (para 2.4(1) above), not a descriptive one (para 2.4(2) above). 47. All this helps to identify Fordham J’s reasons for concluding the Guidance Note was unlawful. His conclusion, based only on the principle stated in Letts, did not require consideration of whether in any case the existence of the Guidance Note had led to an unlawful exercise of the rule 34 power. Thus, his judgment did not attempt to scrutinise the decision taken in any individual error of law appeal. The conclusion that Fordham J did reach does not prescribe the further conclusion that every exercise of the rule 34 power in favour of a no-hearing determination was unlawful. 48. This point is underlined by the status of the Guidance Note under the provisions of the 2007 Act. The Act draws a clear distinction between the Practice Directions which may be made either by the Senior President of Tribunals (ordinarily requiring the approval of the Lord Chancellor) or a Chamber President (ordinarily with the approval of both the Senior President of Tribunals and the Lord Chancellor), and guidance such as that in the Guidance Note. The Guidance Note was issued by Lane J in exercise of the power under paragraph 7 of Schedule 4 to the 2007 Act given to Chamber Presidents “… to make arrangements for the issuing of guidance on changes in the law and practise as they relate to the functions allocated to the chamber” . Guidance issued in exercise of this power is no more than that. Chamber Presidents have the power to issue guidance; but when guidance is issued there is no corresponding obligation on Tribunal judges that attaches to it. The judges are not required to follow the guidance; there is nothing in the 2007 Act even requiring regard to be had to such guidance. In law, guidance issued in exercise of the power under paragraph 7 of Schedule 4 has no express status. This is not to detract from a practical reality that guidance issued by a Chamber President will come to the attention of the judges in that chamber, and no doubt will be carefully considered. But that practice is grounded only in judicial comity. It does not support the conclusion that the existence of the Guidance Note, per se , requires the conclusion that rule 34 decisions were taken unlawfully. Instead, each decision must be assessed on its own terms. 49. A final point that is said to be relevant to the significance of the simple existence of the Guidance Note, is that after the Guidance Note was issued the proportion of error of law appeals determined without a hearing increased dramatically (see Fordham J in JCWI at paragraphs 4.21 to 4.23). We do not accept this necessarily says anything as to whether any specific decision taken pursuant to rule 34 was lawful or unlawful. That question will not be accurately answered by generalisation, only by consideration of each decision. (5)