Tribunals
1. Pre-2007:
During industrial revolution was a great increase in creation of tribunals – lot of
infrastructure had to be built to facilitate industrial revolution, especially railways,
and for this you need land.
People would inevitably lose land – in giving authority to railway companies
to seize land, tribunals were created to deal with disputes.
Welfare state expands:
Parliament starts legislating for more and more tribunals.
Grows up in an ad-hoc way – unsystematic.
If Parliament was legislating on eligibility for old-age pensions, then will
great a tribunal. If the next week they were legislating on education, they
would create another one.
Leggatt Report – 2001:
Lack of systemisation.
Lack of consistency – different structures, different compositions.
No unifying principle (Franks Report)
Basic things missing – no general duty to give reasons for decisions under
1950s.
Judicial oversight (role of HC) varied depending on legislation.
Before 1950s, ouster clauses were very prolific – most removed in 1958.
Lack of independence on part of these tribunals.
Common before 2007 for tribunals to sit in the Government
department that they were reviewing.
e.g., social security tribunal managed (before reform) by
Department for Work and Pensions.
Appearance and sense of justice.
Want to encourage people to bring meritious claims – public
distrust in Government.
Ability to act impartiality.
Mindset of decision-making is influenced by this connection
– institutionalised.
2. Reform:
Tribunals, Courts and Enforcement Act 2007:
Systematisation of many tribunals.
BUT – not all – some tribunals do continue to sit outside system.
e.g., Investigatory Powers Tribunal and Employment Tribunals.
2 tiers:
First Tier Tribunal:
Mostly does merits appeals, mostly looking at whether a
decision was rightly made.
Panel varies depending on dispute – combination of
specialist lawyers and non-lawyers.
Tribunal divided into 7 chambers.
Upper Tribunal:
Main difference = UT does not deal with merits appeals –
question is there a legal error – similar to JR.
Balance of lawyers and non-lawyers changes.
Lot more lawyers – not really looking at facts, often
very specialist.
Specialist legal expertise.
Hard-wired into wider court system.
Statutory right of appeal to CA – limited to points of law.
, Task of getting permission gets harder because statute uses second
appeals criteria.
IPT = different (Privacy International).
3. Are the problems resolved?
a. Yes, to a degree:
Increased independence:
New tribunal system was brought within purview of HM Courts and
Tribunals Service – quasi-independent government body.
s.2 TCEA 2007 – Role of the Senior President.
Usually very senior judge who sits at the top of the system
and in conjunction with the Rules Committee and other
bodies will make decisions about the general management of
the tribunals.
s.1 TCEA 2007 – extension of guarantee of constitutional
independence to Senior President.
More scope for procedural flexibility:
Each of the chambers within FTT and UT have their own set of
tribunal procedural rules – rules should be tailored to the particular
context/type of dispute being decided.
e.g., in tax – high degree of formality not a problem, because
usual party is either a corporation or very wealthy
individuals.
Vs immigration – high degree of formality not accessible and
prevents parties from being able to engage properly with the
issues.
Rules are created by Tribunal Procedure Committee.
s.22 TCEA 2007 gives guidance – rules should be created
with 5 aims in mind.
(1) Ensure justice is done.
(2) Ensure accessible and fair.
(3) Ensure proceedings are handled quickly and efficiently.
(4) Ensure rules are simple and simply expressed.
(5) Ensure rules confer responsibility on members.
Distinguishes JR from tribunals – tribunals created to promote greater
informality in how the processes operate.
Tribunals more accessible – JR is very expensive.
If we have more formal processes that are more adversarial in nature,
parties become reliant on lawyers – where costs come in.
Move towards inquisitorial, informal model – easier to access
process without a lawyer = benefit of tribunal system.
b. But there are still criticisms:
Relationship with JR:
Are we striking the right balance between JR and tribunals?
JR has drawbacks:
Lack of legal specialism – e.g., immigration, tax, social
security law.
Higher risk of error.
Formality of proceedings and dependency on legal
representation.
Expense and accessibility.
Tom Hickman – cost of JR = “public law’s disgrace”
Concerns about workload and delays.
Following the reforms, Gov has been removing rights of appeal to
tribunals.
1. Pre-2007:
During industrial revolution was a great increase in creation of tribunals – lot of
infrastructure had to be built to facilitate industrial revolution, especially railways,
and for this you need land.
People would inevitably lose land – in giving authority to railway companies
to seize land, tribunals were created to deal with disputes.
Welfare state expands:
Parliament starts legislating for more and more tribunals.
Grows up in an ad-hoc way – unsystematic.
If Parliament was legislating on eligibility for old-age pensions, then will
great a tribunal. If the next week they were legislating on education, they
would create another one.
Leggatt Report – 2001:
Lack of systemisation.
Lack of consistency – different structures, different compositions.
No unifying principle (Franks Report)
Basic things missing – no general duty to give reasons for decisions under
1950s.
Judicial oversight (role of HC) varied depending on legislation.
Before 1950s, ouster clauses were very prolific – most removed in 1958.
Lack of independence on part of these tribunals.
Common before 2007 for tribunals to sit in the Government
department that they were reviewing.
e.g., social security tribunal managed (before reform) by
Department for Work and Pensions.
Appearance and sense of justice.
Want to encourage people to bring meritious claims – public
distrust in Government.
Ability to act impartiality.
Mindset of decision-making is influenced by this connection
– institutionalised.
2. Reform:
Tribunals, Courts and Enforcement Act 2007:
Systematisation of many tribunals.
BUT – not all – some tribunals do continue to sit outside system.
e.g., Investigatory Powers Tribunal and Employment Tribunals.
2 tiers:
First Tier Tribunal:
Mostly does merits appeals, mostly looking at whether a
decision was rightly made.
Panel varies depending on dispute – combination of
specialist lawyers and non-lawyers.
Tribunal divided into 7 chambers.
Upper Tribunal:
Main difference = UT does not deal with merits appeals –
question is there a legal error – similar to JR.
Balance of lawyers and non-lawyers changes.
Lot more lawyers – not really looking at facts, often
very specialist.
Specialist legal expertise.
Hard-wired into wider court system.
Statutory right of appeal to CA – limited to points of law.
, Task of getting permission gets harder because statute uses second
appeals criteria.
IPT = different (Privacy International).
3. Are the problems resolved?
a. Yes, to a degree:
Increased independence:
New tribunal system was brought within purview of HM Courts and
Tribunals Service – quasi-independent government body.
s.2 TCEA 2007 – Role of the Senior President.
Usually very senior judge who sits at the top of the system
and in conjunction with the Rules Committee and other
bodies will make decisions about the general management of
the tribunals.
s.1 TCEA 2007 – extension of guarantee of constitutional
independence to Senior President.
More scope for procedural flexibility:
Each of the chambers within FTT and UT have their own set of
tribunal procedural rules – rules should be tailored to the particular
context/type of dispute being decided.
e.g., in tax – high degree of formality not a problem, because
usual party is either a corporation or very wealthy
individuals.
Vs immigration – high degree of formality not accessible and
prevents parties from being able to engage properly with the
issues.
Rules are created by Tribunal Procedure Committee.
s.22 TCEA 2007 gives guidance – rules should be created
with 5 aims in mind.
(1) Ensure justice is done.
(2) Ensure accessible and fair.
(3) Ensure proceedings are handled quickly and efficiently.
(4) Ensure rules are simple and simply expressed.
(5) Ensure rules confer responsibility on members.
Distinguishes JR from tribunals – tribunals created to promote greater
informality in how the processes operate.
Tribunals more accessible – JR is very expensive.
If we have more formal processes that are more adversarial in nature,
parties become reliant on lawyers – where costs come in.
Move towards inquisitorial, informal model – easier to access
process without a lawyer = benefit of tribunal system.
b. But there are still criticisms:
Relationship with JR:
Are we striking the right balance between JR and tribunals?
JR has drawbacks:
Lack of legal specialism – e.g., immigration, tax, social
security law.
Higher risk of error.
Formality of proceedings and dependency on legal
representation.
Expense and accessibility.
Tom Hickman – cost of JR = “public law’s disgrace”
Concerns about workload and delays.
Following the reforms, Gov has been removing rights of appeal to
tribunals.
