Tribunals Notes

Tribunals

Lecture Outline

  • Meaning of Tribunal & Types of Tribunals
  • Functions & Composition of Tribunals
  • Advantages & Disadvantages of Tribunals
  • Key functions of the Administrative Justice & Tribunal Council (AJTC)
  • Key stages in the development of Tribunals in UK:
    • Frank Committee Report (1957)
    • Reform under Leggatt Report (2001)
  • Video on proceedings in an Employment Tribunal.

Introduction

  • Many claims and disputes are settled not by the courts, but by tribunals, each specializing in a particular area.
  • The tribunal system in UK is part of the national system of administrative justice with tribunals classed as non-departmental public bodies.
  • Tribunals are specialist courts that operate alongside the court system – they handle over 1 million cases per year.
  • Tribunals were created after WWII as part of the development of the ‘welfare state’ to enforce people’s social rights.
  • Tribunals are used instead of going to court; one cannot go to court as well unless they have exhausted the tribunal procedure.
  • Individuals are encouraged to bring their own case without legal representation.
  • The case of Peach Grey v Sommers (1995) confirmed that tribunals are inferior to the ordinary courts.

What is a Tribunal

A tribunal is defined as "bodies outside the hierarchy of the courts with administrative or judicial functions" (Curzon, Dictionary of Law, 2001).

British Courts Hierarchy

  • The Supreme Court of Britain
  • The Court of Appeal
  • The High Court
    • The Queen's Bench Division
    • The Family Division
    • The Chancery Division
  • County Courts
  • The Tribunals

Hierarchy Structure

*Supreme Court
* Final court of appeal for all UK civil cases, and criminal cases from England, Wales and Northern Ireland.
* Not administered by HMCS
*Court of Appeal
* Criminal Division: Appeals from the Crown Court
* Civil Division: Appeals from the High Court, tribunals, and certain cases from county courts
*High Court
* Queen's Bench Division: Contract and tort, etc.
* Commercial Court
* Admiralty Court
* Administrative Court: Supervisory and appellate jurisdiction overseeing the legality of decisions and actions of inferior courts, tribunals, local authorities, Ministers of the Crown and other public bodies and officials
* Family Division
* Divisional Court: Appeals from the magistrates' courts
* Chancery Division: Equity and trusts, contentious probate, tax partnerships, bankruptcy and Companies Court, Patents Court
* Divisional Court: Appeals from the county courts on bankruptcy and land
*Crown Court
* Trials of indictable offenses, appeals from magistrates' courts, cases for sentence
*County Courts
* Majority of civil litigation subject to nature of the claim
*Magistrates' Courts
* Trials of summary offenses, committals to the Crown Court, family proceedings courts and youth courts
*Tribunals
* Hear appeals from decisions on: immigration, social security, child support, pensions, tax and lands

Tribunal Service Structure

  • Court of Appeal
  • Upper Tier Tribunal
    • A superior court of record, giving it equivalent status to the High Court meaning that it can both set precedents and can enforce its decisions (and those of the First-Tier Tribunal) without the need to ask the High Court to intervene. It is also the first (and only) tribunal to have the power of judicial review. Administrative Appeals Chamber, Tax and Chancery Chamber, Immigration and Asylum Chamber and Lands Chamber
  • Employment Appeals Tribunal
    • These are not part of the First Tier/Upper Tier
  • First Tier Tribunal
    • The Tribunal comprises seven chamber: The War Pensions and Armed Forces Compensation Chamber; The Social Entitlement Chamber; The Health, Education and Social Care Chamber; The General Regulatory Chamber; The Tax Chamber; The immigration and Asylum Chamber; and The Land, Property and Housing Chamber

Types of Tribunals

  • Administrative: Deals with disputes between individuals and the State over rights contained in social welfare legislation, such as Social Security, Immigration, and Land.
  • Domestic: Internal Tribunals used for disputes within private bodies, such as the Law Society and the General Medical Council.
  • Employment: Biggest use of Tribunals, and deal with disputes between employees and employers over rights under employment legislation.

Domestic Tribunals

  • These are often used within the professions to determine questions relating to the professional conduct of their members. This usually involves matters of discipline.
  • Examples of domestic tribunals include:
    • the General Medical Council (GMC),
    • the General Dental Council (GNC),
    • the Bar Council and other related bodies.
  • Courts generally do not interfere with the proceedings and findings of a tribunal (however see: Lee v Showmen’s Guild’s case)

Lee v Showmen’s Guild

Since Lee v Showmen’s Guild of Great Britain (1952) the courts will interfere in any domestic tribunal to ensure that the rules of these associations are correctly interpreted and the principles of natural justice are observed.

Brief Facts:

Lee was a man who sold pots and pans in a public market. The Showmen’s Guild was a merchants’ organization of which Lee was a member. Lee had a dispute with a fellow merchant in the market and the Guild punished him by suspending his membership. Lee fought his suspension in court and won. The judge’s decision established two critical principles:

  1. The jurisdiction of a domestic tribunal is founded on a contract
  2. A domestic tribunal is subject to the rules of natural justice (rule against bias and right to a fair hearing)

Administrative Tribunals

  • These are concerned with administrative law or matters affecting the rights of a large numbers of persons.
  • A large number of administrative tribunals have been set up by various statutes. However, there are some tribunals which rarely ever sit and a few that have never sat.
Some Administrative Tribunals
  • Employment Tribunals
  • Asylum & Immigration Tribunal
  • Mental Health Review Tribunal
  • Information Tribunal
  • Immigration Service Tribunal
  • Pension Appeals Tribunal
  • Transport Tribunal
  • Lands Tribunal
  • Financial Services and Markets Tribunal

Composition of Tribunals

  • Most tribunals have a legally qualified chairperson and two lay members, who are usually subject experts.
  • No formal rules of evidence apply but rules of natural justice must be followed.
  • Most tribunals consist of a legally-qualified chair person with two independent members (with relevant expertise), one representing each side of the dispute.
  • The independent members often can bring expertise to the decision of the tribunal.
  • For instance, the Employment Tribunal consists of a legally-qualified chairperson, a person who has worked as an employer and a person who has worked as a trade unionist.

Becoming a Tribunal Judge

  • Mainly through the Judicial Appointments Commission
    • statutory and non-statutory requirements, and
    • the qualities and abilities required in any good judge.
  • Tribunal office-holders are appointed to either the First-tier Tribunal or the Upper Tribunal, and then assigned to a particular Chamber
  • Most tribunal appointments are fee-paid, with successful candidates usually expected to sit for at least 15 days each year.
  • For salaried appointment, individuals must normally have served as a fee-paid judicial office-holder for at least two years, or have completed 30 sitting days in a fee-paid capacity
  • Appointments are open only to citizens of the United Kingdom, the Republic of Ireland or a Commonwealth country.
  • There is no upper or lower age limit, apart from the statutory retirement age of 70 for all judges.
  • Applications from disabled people are welcomed
  • Solicitor/barrister: 5 or 7 years of experience
  • Note: The Tribunals, Courts and Enforcement Act (2007) widened the eligibility for many judicial posts, making them open to The Chartered Institute of Legal Executives (CILE), members of the Institute of Trade Mark Attorneys (ITMA) and the Chartered Institute of Patent Attorneys (CIPA).

Procedure in an Administrative Tribunal

  • Opening speeches
  • Witness evidence (the party with the burden of proof goes first)
    • Examination-in-chief
    • Cross-examination
    • Re-examination
    • Additional witnesses
    • Opponents' witnesses
  • Questions by the tribunal
  • Closing speeches
  • Tribunal decision (after adjournment or a reserved judgment)

Appeals from Administrative Tribunals

  • Appeal from many tribunals is to the Divisional Court of the Queen’s Bench. For some, such as the Lands Tribunal, appeal lies to the Court of Appeal
  • However, some tribunals have their own special appeal tribunal. For instance, an appeal from an Employment Tribunal is to the Employment Appeal Tribunal.

The Administrative Justice and Tribunals Council

  • The Administrative Justice and Tribunals Council (AJTC) keeps the tribunal and administrative justice system under review.
  • It was established by the Tribunals, Courts and Enforcement Act 2007
Key Duties of the AJTC
  • To give advice and make recommendations on changes on the workings of the administrative justice system
  • To attend proceedings of tribunals (including deliberations) as an observer
  • Hold an annual conference for Presidents and Heads of Tribunals
  • To review the relationships between the various components of the administrative justice system (such as ombudsmen, tribunals and the courts)

The Tribunal Service

  • It provides common administrative support to the main central government tribunals.
  • It currently has responsibility for > 70 tribunals.
  • It has no responsibility for tribunals devolved to the Welsh Assembly Government or Scottish Executive.

Tribunal: Judicial Control

The courts can exercise control over an administrative tribunal or inquiry by the following means:

  • by statutory right of appeal;
  • by judicial review through the application of the doctrine of ultra vires;
  • by judicial review because of the denial of natural justice.
  • Judicial Review is a process by which a court reviews a decision made by a public body. A public body may be a court, tribunal, government department or other organization.
  • Judicial Reviews are distinct from appeals, in that an appeal is usually brought to challenge the outcome of a particular case.

Reasons for Tribunals

  • Relief of congestion in ordinary courts
  • Speedier and cheaper procedures- very informal
  • Have specific issues dealt with by persons with an intimate knowledge and experience of a particular problem- employment matters
  • The need to provide a specialist forum to deal with cases involving conflicts between increasing welfare state and citizens

Tribunals - an Evaluation

Advantages:
  • Cost
    • Parties are encouraged to take their own cases without the need for representation. This has been made even easier with the availability of application forms online and a more transparent Tribunal Service since the reforms.
  • Expertise
    • At least one member of the Tribunal will be an expert in the relevant field, so this will save time explaining complex technicalities to a judge in court.
  • Speed
    • There is a duty on the Tribunal Judges to take on case management duties, so they are able to impose strict timetables to ensure that most cases can be heard within one day.
  • Informality
    • Tribunals are much less formal than a court hearing, though they are more formal than other methods of ADR. The parties benefit from a private hearing and have the chance to maintain a relationship after the case is over.
  • Independence
    • Because of the involvement of the Judicial Appointments Commission in appointing Tribunal Judges, the Tribunal system is much more transparent, independent and thus fair. Further, the unified set of procedures and rules minimizes the risk of inconsistencies between tribunals.
Disadvantages:
  • Lack of Funding
    • Legal Funding is available for some disputes, for example, if you are a member of a union, you may get your case paid for by them, but it is not always available, which can be detrimental to a person taking on a big company who has the benefit of the most expensive representation.
  • Delay
    • If the case is one of a complex nature, then there can be a delay in getting the case heard.
  • Intimidated Parties
    • There is still the problem of parties feeling intimidated and daunted at the prospect of taking a case to "court", particularly without the comfort of having a legal representative.
  • Lack of Precedent
    • Tribunals do not operate a strict system of precedent, so there is sometimes an element of unpredictability to the outcomes of cases.

Tribunals: Advantages

  • Cost (to parties)
    • Tribunals usually do not charge fees; each party usually pays their own costs. The simpler procedures of tribunals should mean that legal representation is unnecessary, so reducing costs.
  • Speed
    • Cases come to the tribunal fairly quickly; many are dealt with within a day
  • Informality
    • Varies between different tribunals, as a general rule, wigs are not worn, strict rules of evidence do not apply, and attempts are made to create an un-intimidating atmosphere.
  • Flexibility
    • Although they aim to apply fairly consistent principles, tribunals do not operate strict rules of precedent, so are able to respond more flexibly than courts
  • Privacy
    • Tribunals may, in some circumstances, meet in private, so that the individual is not obliged to have their problems aired in public
  • Expertise
    • Tribunals members already have expertise in the relevant subject area and through sitting on tribunals are able to build up a depth of knowledge of that area that judges in ordinary courts could not hope to match
  • Relief of pressure on Courts
    • If the volume of cases heard by tribunals was transferred to the ordinary courts, the system would be completely overloaded.

Tribunals: Disadvantages

  • Lack of Openness
    • The fact that some tribunals are held in private can lead to suspicion about the fairness of their decisions
  • Unavailability of State Funding
    • Full funding from the Legal Services Commission is available for only a small number of minor tribunals. Tribunals are designed to do away with the need for representation, but in many of them the ordinary individual will be facing an opponent with access to the very best representation- an employer, or a govt dept, and this places them at a serious disadvantage.
  • Appeals
    • There is no absolute right to appeal from a tribunal – such rights exist only when laid down by statute; consequently there is no uniform appeals system, and some tribunals offer no appeal rights at all.
    • Appeals when allowed to the High Court are expensive and complex.

History of Tribunals

Leggatt’s criticisms:
  • Tribunals not user friendly
  • No uniformity of procedure
  • Lack of accessibility to the public
  • Lack of independence
Tribunals, Courts and Enforcement Act 2007

*A Single Tribunal Service to be responsible for the administration of all tribunals
* This makes the Tribunal Service independent of its relevant government department.
* The support that the Service gives to Tribunals is unified both in procedure and administration.
*Tribunals should be organized into divisions grouping together similar tribunals
* The Divisions that were created are: Education, Financial, Health and Social Services, Immigration, Land and Valuation, Social Security and Pensions, Transport, Regulatory and Employment.
* Each Division is headed by a Registrar who takes on case management duties in line with the Civil Procedure Rules.
*The system should be user friendly
* Users are encouraged to bring their own cases without legal representation.
* Written judgments should be given in Plain English.
* Information about procedures, venues etc. should be made freely available.

  • Single route of appeal
    • There is a single route of appeal; with each Division having a corresponding Appeal Tribunal, and only then will there be a redress to the Court of Appeal.

Key stages in the Development of Tribunals

  • Much of the organization of tribunals can be understood by looking at two important reviews and reports on tribunals.
  • These are the Franks Committee Report 1957 and the Leggatt Review of 2001.

Franks Committee Report (1957)

In 1957, the Franks Committee investigated the workings of the tribunals and made recommendations on administrative tribunals and inquiries. The main criticisms of this report were that tribunals did not give reasons for their decisions and there were often no routes of appeal.

Effect of Franks Committee Report

Following the report, a number of important changes were introduced to the administrative tribunal system by the Tribunals and Inquiries Act 1958 (with later additions in the Tribunals and Inquiries Act 1971 and Tribunals and Inquiries Act 1992).

Key Changes

  • Openness
    • Where possible, hearings in public and tribunals would now give reasons for their decisions;
    • all material facts would be disclosed to all parties before the hearing;
  • Fairness
    • Entail the adoption of clear procedures which allows parties to know their rights, present their case fully, and be aware of the case against them.
    • parties can be represented by a lawyer if they wish;
  • Impartiality
    • Tribunals should be free from undue influence from any Government departments concerned with their subject matter – appeals would lie from most tribunals to the Divisional Court of the Queen’s Bench.

Reforming the Tribunals

  • In 2000, Sir Andrew Leggatt, a retired Lord Justice of Appeal was appointed to look at the tribunal service (which dealt with over 1 million cases)
  • Found that of 70 tribunals only 20 heard more than 500 cases a year.
  • The review report, Tribunals for Users: One System, One Service, was published in 2001

Leggatt Report on Review of Tribunals

  • Designed to achieve a “rationalized and modernized” system
  • Main Objectives:
    • To make the seventy tribunals into one tribunal system that its members can be proud of.
    • To render the tribunals independent of their sponsoring departments by having them administered by one tribunal service.
    • To improve the training of chairmen and members in the interpersonal skills peculiarly required by tribunals.
    • To enable unrepresented users to participate effectively and without apprehension in tribunal proceedings
    • Providing a coherent appeal system
    • Reconsidering position of lay members

Reforming Tribunals

  • Following the Legatt Review, the Government issued a White paper, Transforming Public Services: Complaints, Redress and Tribunals (2004), Containing significant plans to reform the tribunal system.
  • Many of these reforms are now contained in the Tribunals, Courts and Enforcement Act 2007.

Tribunals, Courts and Enforcement Act 2007

  • The Administrative Justice and Tribunals Council replaced the Council on Tribunals which had operated since 1957 – its duties include:
    • Keeping the workings of tribunals under review
    • Reporting on the constitution and working of tribunals
    • Considering and reporting on any other matter relating to tribunals.
  • The whole system is headed by the Senior President of Tribunals who is responsible for assigning judges to chambers.
  • Tribunal judges are appointed by the Judicial Appointments Commission.
  • The Tribunal Service was merged with HM Court Service to become HM Courts and Tribunal Service in 2010

Tribunals, Courts and Enforcement Act 2007 Following the Legatt Review the TCEA 2007 was created.

Aims:
  • Unification and Simplification of the Tribunals System To create a new, simplified statutory framework for tribunals by unifying the tribunals judiciary under a Senior President
  • Diversification
    • To encourage and enable a wider range of applicants to apply for judicial office by amending the threshold criteria for eligibility for appointment.

Tribunals Today

  • Composition Tribunals consist of one legally trained chairperson and two lay-people with expertise in a subject area
  • The legally trained member has the title of ‘judge’
  • Two-Tier Structure First-Tier Tribunal and Upper Tribunal ( Appellate)
  • Status
    • Tribunals are regarded as inferior to ordinary courts See: Peach Grey & Co v Sommers (1995)
    • Largely independent of normal courts in their own jurisdiction

Tribunals Today

  • Chambers
    • The Tribunals will be organized into Chambers dealing with particular areas of law.
    • Each Chamber will have its own President
  • Appeal
    • Can be raised on a point of law and with permission from First-tier to the upper Tribunal, and from Upper Tribunal to the Court of Appeal.
  • An Administrative Justice and Tribunals Council
    • Will replace the Tribunals Council and will have a broader remit than its predecessor.

Unified tribunal Structure

  • The Upper Tribunal - newly created court of superior record with UK-wide jurisdiction. Established under the Tribunals, Courts and Enforcement Act 2007 and began work in November 2008. At the end of the 2008-09 financial year it comprised 5 Chambers, including the Administrative Appeals Chamber.
  • The First-tier Tribunal, also created by the Tribunals, Courts and Enforcement Act 2007, began work on 3 November 2008.