Access to Court/Tribunal: presumption against impeding access

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"[76] In more modern times, many examples can be found of judicial recognition of the constitutional right of unimpeded access to the courts (as Lord Diplock described it in Attorney General v Times Newspapers Ltd [1974] AC 273, 310, and again in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corpn Ltd [1981] AC 909, 977), which can only be curtailed by clear statutory enactment. Thus, in In re Boaler [1915] 1 KB 21, where the question was whether a statutory prohibition on vexatious litigants instituting legal proceedings extended to criminal proceedings, the Court of Appeal held that it did not. Scrutton J said at p 36 that although a statute might deprive a subject of the right to appeal to the courts, “the language of any such statute should be jealously watched by the courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension.” Similarly, in Chester v Bateson [1920] 1 KB 829, where delegated legislation prohibited the bringing of certain legal proceedings without a minister’s consent, the Divisional Court held that the regulation was invalid. Avory J stated that “nothing less than express words in the statute taking away the right of the King’s subjects of access to the courts of justice would authorize or justify it” (p 836). To similar effect was the decision of the House of Lords in R & W Paul Ltd v The Wheat Commission [1937] AC 139, where an arbitration scheme established by delegated legislation disapplied the Arbitration Act 1889, under which arbitrators could state a special case for the opinion of the court on a point of law. That element of the scheme had not been expressly authorised by the enabling legislation, and was held to be ultra vires. As Viscount Simonds observed in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, 286:

“It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words.”

[77] Another important general statement was made by Lord Diplock in Attorney General v Times Newspapers Ltd at p 309:

“The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law.”

[78] Most of the cases so far mentioned were concerned with barriers to the bringing of proceedings. But impediments to the right of access to the courts can constitute a serious hindrance even if they do not make access completely impossible. More recent authorities make it clear that any hindrance or impediment by the executive requires clear authorisation by Parliament. Examples include Raymond v Honey [1983] 1 AC 1, where prison rules requiring a prison governor to delay forwarding a prisoner’s application to the courts, until the matter complained of had been the subject of an internal investigation, were held to be ultra vires; and R v Secretary of State for the Home Department, Ex p Anderson [1984] QB 778, where rules which prevented a prisoner from obtaining legal advice in connection with proceedings that he wished to undertake, until he had raised his complaint internally, were also held to be ultra vires." (R oao Unison v. Lord Chancellor [2017] UKSC 51)

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"[41] Mr Burton also relied on the existence of a presumption that rights of appeal will not be excluded where they would be otherwise available. In R v Emmett [1998] AC 773, 781-782 the House of Lords had to consider whether a reference to an acceptance of an allegation as "conclusive" in s.3(1) of the Drug Trafficking Offences Act 1986 meant for all purposes, including an appeal against a confiscation order. Lord Steyn said:

"There is a strong presumption that except by speci?c provision the legislature will not exclude a right of appeal as of right or with leave where such a right is ordinarily available: Reg. v Cain [1985] A.C. 46, 55G-56D, per Lord Scarman. The starting point is that, unless section 3(1) expressly or by necessary implication excludes a right of appeal, there is as a matter of jurisdiction a right of appeal against a confiscation order in all cases."
It was held that a right of appeal to the Court of Appeal was excluded neither expressly nor by necessary implication.

[42] The context there was a criminal appeal. However, similar principles have been applied elsewhere. For example, in the earlier case of R v Secretary of State for the Home Department Ex p. Leech (No.2) [1994] QB 198, a provision in the prison rules was held to be ultra vires so far as it impeded correspondence with legal advisers about contemplated proceedings." (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)

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- Presumed limitation that degree of intrusion must not be greater than justified by objectives

 

"[88] But a situation in which some persons are effectively prevented from having access to justice is not the only situation in which the Fees Order might be regarded as ultra vires. As appears from such cases as Leech and Daly, even where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation. As it was put by Lord Bingham in Daly, the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve." (R oao Unison v. Lord Chancellor [2017] UKSC 51)

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- No substantive distinction between regulating a right of appeal and excluding it

 

"[61] ... While I understand HMRC's argument that s.38(1A) simply regulates the exercise of a right of appeal rather than excluding it as in Saleem, I cannot accept it. In substance and in reality, the effect of s.38(1A) is to remove a right of appeal where time is not extended by HMRC under s.21B.

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[64] Ms Smyth relied on Moses LJ's reference at [21] of ToTel to a provision requiring payment of tax in dispute before an appeal may be entertained as an example of a provision governing the "circumstances in which … an appeal may be made", within s.124(2). She submitted that there was no material difference between that and requiring a review to have been conducted. Both were simply conditions that needed to be met before a right to appeal could be exercised, rather than provisions which removed a right of appeal.

[65] There are two responses to that. First, and in contrast to s.38(1A), the example given by Moses LJ is explicitly recognised in s.124(3). Secondly, and more fundamentally, the effect of s.38(1A) is not simply to mandate a review to be conducted first as a condition of bringing an appeal. Rather, its effect is to exclude the possibility of a late challenge where HMRC do not agree to extend time. In essence, it excludes the jurisdiction of the FTT to determine whether to entertain a late appeal." (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)

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- Mandatory review procedure not within scope of purpose of enabling power

 

"[58] The effect (or purported effect) of the introduction of s.38(1A) by the 2014 Order is radical. It not only requires a review to be conducted but does so in a manner which excludes the right of recourse to the FTT that previously existed in circumstances where a decision is challenged late and HMRC refuse an extension of time. Before the 2014 Order was made the FTT had the power to extend time for an appeal by up to 12 months where a late appeal was made, pursuant to the FTT rules. Although that power remains, s.38(1A) precludes an appeal altogether unless a review has been carried out and its outcome has been notified. In contrast, ss.21A and 21B, which were also introduced by the 2014 Order, present no difficulty by themselves. Their effect, read without s.38(1A), is simply to confer a time-limited right to require HMRC to review a decision of a kind falling within s.38(1).

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[61] The purpose of s.124 FA 2008, as is clear from the Explanatory Notes to the Bill, was to facilitate the transition to the new tribunal system and allow the introduction of a right to a formal review. That is very different from a mandatory review on terms that excludes the FTT's ability to determine whether to entertain a late challenge. There is nothing in s.124 FA 2008 that makes clear that it authorises a provision which has the effect of making the decision maker the effective gatekeeper of appeals to the FTT in the event of a late challenge, subject only to the possibility of judicial review. Although s.124(2)(a)(ii) permits provision about the "circumstances in which" an appeal may be made, that is insufficiently clear to permit HMRC to become the gatekeeper. While I understand HMRC's argument that s.38(1A) simply regulates the exercise of a right of appeal rather than excluding it as in Saleem, I cannot accept it. In substance and in reality, the effect of s.38(1A) is to remove a right of appeal where time is not extended by HMRC under s.21B." (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)

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