The tribunals ‘umbrella’
Andrew Bano, a Social Security and Child Support Commissioner, discusses bringing together tribunals into the judicial family in an article which originally appeared in ‘Benchmark’ the judicial newsletter. This article has been reproduced with kind permission of the author and Benchmark team.
The 2001 report of the review of tribunals chaired by Sir Andrew Leggatt, Tribunals for Users-One System, One Service, painted a bleak picture. It described a patchwork of tribunals administered by different government departments, each of which had been created by individual pieces of primary legislation, but without any overarching framework. To deal with this problem, the Leggatt report recommended that tribunals should be brought together into a single system, administered by a new Tribunals Service in what was then the Lord Chancellor’s Department.
Like many similar reports, the recommendations of the Leggatt inquiry might have gone unheeded, but for human rights concerns. The departments which administered tribunals were usually the rule making authority for their tribunals and paid the salaries and fees of the tribunal members. Since those departments were usually parties to the proceedings before the tribunal, it was evident that tribunals did not have the independence which was required by Article 6 of the European Convention on Human Rights.
In July 2004 the Government published its response to the Leggatt report as a White Paper called Transforming Public Service: Complaints, Redress and Tribunals. The White Paper proposed two new generic tribunals: a First-tier Tribunal and an Upper Tribunal, dealing mainly, but not exclusively, with appeals from the First-tier Tribunal. The Tribunals, Courts and Enforcement Act 2007, which received Royal Assent on 19th July this year, created the machinery for transferring existing tribunals into the new unified structure and for the organisation of the new tribunals into ‘chambers’, presided over by a Chamber President. The administration of the Asylum and Immigration Tribunal and of the employment tribunals and the Employment Appeal Tribunal has been transferred into the Tribunals Service, but those tribunals will maintain their existing jurisdictions, as separate ‘pillars’ of the new tribunal system.
However, the 2007 Act did much more than simply rationalise the structure of the tribunals. The new systems of judicial appointments and of judicial discipline created by the Constitutional Reform Act 2005 extended to tribunals, but the Act did not deal with other aspects of the position of tribunals in the new constitutional framework. That task was left to the 2007 Act, and as a result of the passing of that Act the constitutional position of the tribunals has for the first time been placed on a proper footing.
Since most of the work of tribunals is concerned with disputes between citizen and state, it is appropriate that section 1 of the 2007 Act provides for the independence of the tribunals judiciary. The Constitutional Reform Act 2005 imposes a duty on the Lord Chancellor and other Ministers of the Crown to uphold the continued independence of the judiciary, and section 1 of the 2007 Act amends the definition of “judiciary” in the 2005 Act to make it clear that the duty to uphold judicial independence extends to all the judiciary of tribunals administered by the Lord Chancellor.
The Act also implements the recommendation of the Leggatt inquiry for the creation of a new post of Senior President of Tribunals to provide unified leadership to the tribunals judiciary. Under section 47, there is a duty of cooperation between the Senior President, the Lord Chief Justices of England and Wales and Northern Ireland and the Lord President, in relation to judicial training, guidance and welfare in the tribunals. The Senior President has the same responsibilities for those matters in the tribunals, including the Asylum and Immigration Tribunal and the Employment Tribunals and Employment Appeal Tribunal, as the Lord Chief Justices have for other members of the judiciary in England and Wales, and Northern Ireland, and there is power for the Lord Chief Justice to delegate to the Senior President, in his capacity as Senior President, disciplinary functions in relation to the tribunals judiciary. In addition, the Senior President, who is required to have regard to certain statutory principles in exercising his functions, will have important powers and duties in relation to matters such as the assignment of judges and members to chambers, the making of practice directions, and the membership of Tribunal Procedure Committee (which he or his delegate is expected to chair). Lord Justice Carnwath is the Senior President of Tribunals and, acting in that capacity, has already provided the judicial leadership which was needed in the run-up to the passing of the Act.
The 2007 Act will do much to bring together what were formerly virtually entirely separate parts of the justice system. Members of the tribunals judiciary will be called “judges”, and will for the first time be led by a senior judge from within the ordinary courts. Monetary awards by tribunals will be directly enforceable. The Upper Tribunal will be a superior court of record, and the Act provides for it to be given powers to make judicial review orders in some types of case. Undoubtedly, the reforms will do much to overcome the sense of isolation felt by many members of the tribunals judiciary as a result of the fragmentation of the previous tribunal system.
But the movement will not be all one-way. The Act provides for the Senior President to make a request for judges of the Court of Appeal, High Court puisne judges, Circuit Judges, District Judges and District Judges (Magistrates’ Courts) to sit as members of either the First-tier tribunal or Upper Tribunal, providing an opportunity for those judges to participate in the work of the tribunals.
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