TRIBUNALS

The move from many separate Tribunals to a Unified Tribunal Structure

Apart from the mainstream courts – (see COURTS page on this website) – numerous Tribunals have been created by Parliament as an alternative method of dispute resolution particularly in areas where there is a need for specialist knowledge or expertise in order to reach decisions. By the end of the 20th century it was clear that the tribunal structure was a likely candidate for reform given the large number of different tribunals, operating under different codes of procedure, with varying powers and different sponsoring government Ministers. 

Even before the Second World War, a considerable number of tribunals had been created to deal with matters such as Old Age Pensions, Unemployment Benefit, War Pensions etc.  However, it was not until 1957 that the tribunal system was subjected to detailed scrutiny by the Franks Committee – [Report of the Committee on Administrative Tribunals and Enquiries 1957, Cmnd, 218].

Franks said that the advantages of tribunals were “cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject.”   It has to be seriously doubted that some of these purported advantages really exist at the present day.  Tribunals appear to have become ever more formal with complex rules tending to make the tribunal amenable only to those who frequently appear at tribunal hearings.  The adversarial system of the mainstream courts has usually been adopted.  Against these criticisms it should be noted that there is considerable emphasis on procedural fairness in English law and this factor underlies many of the procedural rules.  Also, given the considerable gravity of some of the cases handled within the Tribunal system it is perhaps not surprising that a degree of formality has developed.

The Franks report led to the Tribunals and Inquiries Act 1958 which has now been replaced by the Tribunals and Inquiries Act 1992.  It is under these Acts that the Council on Tribunals came into being and was given the important role of supervising Tribunals.  A key element in this supervision relates to the procedural rules for those tribunals supervised by the Council.

There is also Her Majesty's Courts and Tribunals Service – an executive agency of the Ministry of Justice – which provides administrative support to the courts and tribunals.  (HMCTS was formed, from 1st April 2011, by a merger of Her Majesty's Courts Service and the Tribunal Service).

In 2000, Lord Irvine of Lairg (then Lord Chancellor) invited Sir Andrew Leggatt (a former Lord Justice of Appeal) to review the Tribunals in England and Wales – see Tribunals Review .  The final report of this Review may be seen at Leggatt Report.   The report recommended extensive reform.

When commencing the review, Sir Andrew said that –

"Tribunals decide nearly half a million cases every year. By providing a forum for dealing with most of the disputes which arise between citizens and the state, the tribunal system also plays a vital part in maintaining the health of a democratic society and enhancing the rule of law.

"This is, however, the first time they have been examined systematically since the Franks committee which reported in 1957. “

The government wasted little time in following up the Leggatt Report and the Tribunals, Courts and Enforcement Act 2007  was enacted.  From 3^rd November 2008, this brought about radical changes to the tribunal structure.  

The 2007 Act created the:

a)  First Tier Tribunal – divides into Chambers as described here. 

b)  Upper Tribunal – divides into Chambers as described here.  This tribunal is a "superior court of record" - Tribunals, Courts and Enforcement Act 2007 section 3(5)

In R (Cart) v Upper Tribunal [2010] EWCA Civ 859 the Court of Appeal said - "The edifice of administrative and adjudicative tribunals created by the [2007 Act] is a landmark in the development of the United Kingdom's organic constitution.  For the first time, a single structure has been created within which a huge variety of existing tribunals is gathered" - (per Laws LJ at para 1).  Longmore LJ added (para 42) - the Upper tribunal " represents a newly coherent and comprehensive edifice designed, among other things, to complete the long process of divorcing administrative justice from departmental policy, to ensure the application across the board of proper standards of adjudication, and to provide for the correction of legal error within rather than outside the system". 

The new First-tier tribunal and the Upper Tribunal are presided over by a Senior President of Tribunals.  Each of these new tribunals consists of Judges and other members.  Each of the  tribunals will be able to sit in “Chambers” and each Chamber will have a “Chamber President.”

The Tribunals, Courts and Enforcement Act 2007 section 1 addresses the independence of tribunal judiciary.  This was done by amendment to section 3 of the Constitutional Reform Act 2005.  Also, the Act enables the Senior President to request judges of the Court of Appeal, High Court Judges, Circuit Judges, District Judges and District Judges (Magistrates’ Courts) to sit as members of either the First-tier tribunal or Upper Tribunal.  This will provide an opportunity for those judges to participate in the work of the tribunals.

One interesting feature of the Act is a new process by which certain applications for judicial review will be transferred by the High Court to the Upper Tribunal.  Thus, for the first time in history, some applications for judicial review may be be heard outside of the High Court of Justice.

In place of the Council on Tribunals, a new Administrative Justice and Tribunals Council came into being on 1st November 2007.

It remains to be seen whether the approach to tribunals created by the Tribunals, Courts and Enforcement Act 2007 will address many of the criticisms of the system.  The arrangements being made under the 2007 Act already look quite complex and considerable delegated legislation (statutory instruments) has been used to effect changes.  

The first commencement order for the 2007 Act was made in September 2007.  The new Administrative Justice and Tribunals Council came into being on 1^st November 2007.  From 3^rd November 2008, the Upper Tribunal and the First-tier tribunal took over the jurisidictions of a number of existing tribunals.  Since then, further tribunals have been brought into the fold of the new system.  The aim is to bring all tribunals within this unified tribunal system.  Thus, in February 2010, Asylum and Immigration came into the system.

As of August 2010 the First Tier Tribunal comprised the following Chambers:

Health, Education and Social Care Chamber - established November 2008

Social Entitlement Chamber - established November 2008

War pensions and Armed Forces Compensation - established November 2008

Tax Chamber - established April 2009

General Regulatory Chamber - established September 2009

Immigration and Asylum Chamber - established February 2010

As of August 2010 the Upper Tribunal comprises the following Chambers:

Adminstrative Appeals - established November 2008

Tax and Chancery - established April 2009

Lands Chamber - established April 2009

Immigration and Asylum Chamber - established February 2010

The Administrative Justice and Tribunals Council – The Council claims to “ ….. keep under review the administrative justice system as a whole with a view to making it accessible, fair and efficient. We seek to ensure that the relationships between the courts, tribunals, ombudsmen and alternative dispute resolution providers satisfactorily reflect the needs of users.”

 
Principles for Administrative Justice - April 2011