[Stick with me - the pun actually works]
In the context of FinTech Week, I have been following the various announcements by the FCA and HM Treasury on the "future" of financial services regulation in the UK.
A previous post dealt with the matter of "fast-tracking" the Regulatory Decisions Committee (RDC) process and my concerns arising from that. One result of "fast-tracking" would be that the first independent adjudication of a case would be the Upper Tribunal. There is an appeal process for an Upper Tribunal decision, but it relies on there being:
- an important point of principle or practice to consider; or
- some other compelling reason for the Court of Appeal to hear the appeal.
Other than that, there is just the scant opportunity to seek Judicial Review of the Upper Tribunal's decision.
In a perfect storm, so far as this "fast-tracking" is concerned, the government has been attempting to overturn the 2011 Cart decision (in which the UK Supreme Court found that appeals from the Upper Tribunal could be the subject of Judicial Review) by statute. It has been doing so based on data which, it says, show that only the smallest fraction of Judicial Review applications are successful.
Public Law Project (PLP) has highlighted that this data might be materially or fatally flawed, but this has been rejected by the government. I should add to the PLP's excellent work here that the low numbers of Judicial Review cases might also have something to do with the high bar set for a Judicial Review application being made in the first instance. This bar is set deliberately high and with some reason.
However, if the bar remains as high when the game has otherwise changed so fundamentally, we may end up seeing more appeals being allowed from the Upper Tribunal (on basis of points of law) or the industry will be done a disservice.
The government is currently consulting on a raft of reforms. These include reversing the effect of the Supreme Court’s 2011 judgment in Cart, which would prevent Upper Tribunal appeals being subject to judicial review, after the Independent Review of Administrative Law assessed that 12 out of 5,502 applications for a Cart JR since 2012 have been successful.