The Role of Tribunals Within England

In seeking to analyse the role of tribunals within England and Wales it is necessary to consider whether the tribunal service is a necessary addition to the court system that prevails currently in the domestic legal system so that it will clearly be important, as part of this essay’s discussion, to begin by considering what a tribunal actually is. Then, from this general foundation, this will essay will seek to evaluate the role of tribunals within England and Wales through an evaluation of their development before considering as to whether the tribunal service is a necessary addition to the court system domestically by looking to also ascertain the role it plays along with its significance. Finally, this essay will look to conclude with a summary of the key points derived from this discussion in relation to whether, having analysed he role of tribunals within England and Wales, it is necessary to consider whether the tribunal service is a necessary addition to the court system.

With a view to furthering this discussion it is, therefore, important to begin by looking to define what tribunals are and their role in the English and Welsh legal system. To this effect, in practice, it has been recognised that tribunals generally consists of any individual or authority that has been grnated the authorisation to make judgements, adjudications on or determinations of either disputes or claims regardless of as to whether it actually includes tribunal in the name of the body itself. [1] By way of illustration, in times gone by it has been possible for an advocate that is making an appearance before an individual judge in court to describe them as ‘their tribunal’. Nowadays, however, those bodies of government that are referred to as being ‘tribunals’ have been delineated in this way with a view to providing added emphasis to the fact that they are, in fact, not courts in what could be perhaps best labelled as being normal jurisdiction. [2] To better illustrate the point, whilst it clearly falls beyond the remit of the overall discussion undertaken as part of this essay, the International Criminal Tribunal for Rwanda was a body that was established specifically by way of international law. More pertinently for the purpose of this discussion, in England and Wales Employment Tribunals are bodies established to then hear disputes emanating from issues associated with the breakdown of employment relationships, whilst private judicial bodies have commonly been styled as being somewhat akin to ‘tribunals’ – although it should be noted that the delineation provided by the term ‘tribunal’ is not deemed to be conclusive of the function of a body since. By way of illustration, it is interesting to note that the Employment Appeal Tribunal is actually a superior court of record despite being the appeal body for the decisions that are reached by an Employment Tribunal. [3]

Looking more specifically at the tribunal system of England and Wales it is to be appreciated that this is part of administrative justice’s national system whereby tribunals are designated within the domestic legal system as being non-departmental public bodies (NDPBs). [4] The reason for this is that, although it has been fashioned on something of an ad hoc foundation from the start of the twentieth century, as of the reforms of 2007 a unified system was established with effectively recognised judicial authority, appeal routes and supervision of a regulatory nature. However, there is a need to understand that this system of tribunals as we know it began with the enactment and implementation of the National Insurance Act 1911 along with its incumbent provisions with a view to then effectively providing that it is possible to adjudicate disputes through agencies of administration. [5] As a result, it was from this point that, throughout the remainder of the twentieth century, government ministers in both England and Wales were able to attain increasing amounts of power and were vested with decisions that served to impact upon the all citizens day-to-day lives – although the reasons for this were somewhat negative at times to say the least.

By way of illustration, in 1954 the government domestically was somewhat embarrassed by the Crichel Down Affair that effectively served to centre fears present publicly regarding fears about maladministration along with excutive anthority’s abuse of their power. This case was focussed upon 725 acres of agricultural land at Crichel Down with a considerable amount forming part of Crichel House’s estate owned by the 3rd Baron Alington but was compulsorily purchased in 1938 by the Air Ministry for the Royal Air Force’s (RAF’s) training. [6] Coincidentally when serving with the RAF in 1940 the 3rd Baron Alington so that the estate passed in trust to his only child. [7] However, as of 1941 Winston Churchill promised Parliament the land would be returned to its owners after World War II when it was no longer required but this was not honoured. [8] Instead the land was handed over to the Ministry of Agriculture leased it out so that, by 1949, the owners had started a campaign for the promise to be upheld leading to a public inquiry culminating in the Franks Report of 1957. [9] This Report was found to be highly critical of the actions taken on behalf of the government leading to the Crichel Estate part of the land being sold back to the owners and the resignation of the government minister (Sir Thomas Dugdale) to blame. [10]

The Franks Report of 1957 marked the fact that many such minsterial decisions had caused problems in view of their complexity and magnitude so that this meant they then had to be gradually delegated to an increasing number of tribunals. Therefore, the committee that formed in the wake of the Crichel Down affair for the purpose of the Franks Report was utilised with a view to illuminating this area regarding inquiries and tribunals – although not the problems with ministerial decisions exposed by the problems at Crichel Down. [11] Principally, upon its publication in 1957 the Franks Report served to move the system of tribunals from a model that was more executive and administrative to something more akin to the courts: to something that could perhaps be best described as judicial. [12] That this proved to be the case is marked by the fact that the Report was able to identify three principles regarding tribunals effective and efficient operation – (a) openness; (b) fairness; and (c) impartiality. As the Report itself stated, “Take openness. If these procedures were wholly secret, the basis of confidence and acceptability would be lacking. Next take fairness. If the objector were not allowed to state his case, there would be nothing to stop oppression. Thirdly, there is impartiality. How can a citizen be satisfied unless he feels that those who decide his case come to their decisions with open minds?”. [13]

Aside from establishing principles for the system of tribunals to adhere to, the Franks Report led to the enactment and implementation of the Tribunals & Inquiries Act 1958 that served to create the Council on Tribunals in 1959 that then began its work to – (i) undertake an ongoing review of the constitution and actual operation of the particular tribunals so as to, when necessary, report on these elements; (ii) evaluate and then report on the issues that are referred to the Council on Tribunals under the terms of the Tribunals & Inquiries Act 1958 regarding tribunals aside from the ordinary courts of law; and also (iii) evaluate and then report on issues that are referred to the Council on Tribunals (or that they deem to be of particular significance) regarding administrative procedures that either involve or could serve to involve a statutory inquiry either by or on a Minister’s behalf. [14] Nevertheless, this was not the last time that the system of tribunals had been the subject of criticism within the domestic legal system since Lord Scarman for one looked upon the use of tribunals as being something of a danger to both the courts and, more petinently, the judiciary and the law’s authority. [15] Then, as of 1988, in an effort to further develop the system of tribunals domestically an Administrative Review Council was recommended with a view to then providing independent scrutiny in keeping with the model for tribunals found in Australia [16] but this was rejected and it was not until the enactment and implementation of the Tribunals & Inquiries Act 1992 that the tribunal systesm was altered a little more by way of further development.

As a result, it was arguably not until the beginning of the twenty-first century that further calls made for greater reform were finally met leading to the 2006 establishment of the Tribunals Service as an executive agency with a view to better managing and administering tribunals along with the enactment and implementation of the Tribunals, Courts & Enforcement Act 2007. [17] With this in mind, the Tribunals Service was established with a view to responding to the review undertaken by Sir Andrew Leggatt in the form of the UK tribunal system review labelled as the ‘Tribunals for Users: One System, One Service’ in 2001. [18] Ostensibly, Leggatt was critical of the system that had developed at the time for administering a number of tribunals when observing some tribunals were not independent of the administrative bodies they were meant to have control over and there was no administrative uniformity in the whole system of tribunals. [19] This Report was not the last to criticise the system of tribunals as it was then followed three years later by a White Paper in 2004 labelled as ‘Transforming Public Services: Complaints, Redress and Tribunals’ that also proposed bringing together numerous tribunals under a newly created agency of administration that came to bear in 2006 after the Tribunals Service was created from the tribunals administered by the Department for Constitutional Affairs along with a number transferred from other department of government. [20] An example of the latter in this regard was provided for in the form of the Social Security & Child Support Appeals Tribunal supplied with support administratively by the Appeals Service (formerly an executive agency itself) reporting to the Department for Work & Pensions.

Along with the Tribunals Service, the Tribunals, Courts & Enforcement Act 2007 served to establish a new unified structure for tribunals that considers legally qualified tribunal members to also be part of the judiciary domestically that are ensured an ongoing level of judicial independence within the court system. [21] In addition, the Tribunals Service, the Tribunals, Courts & Enforcement Act 2007 established two new tribunals for pre-existing jurisdictions to be transferred in the form of a First-Tier Tribunal and an Upper Tribunal that are then divided into chambers broadly based around subject headings. [22] As part of this system it is then for all members that are legally-qualified to be referred to as judges, whilst there is also a right of appeal regarding questions of law throughout the system along with some limited jurisdiction for the possibility of judicial review along with a right of appeal to the Court of Appeal domestically. [23] In addition, the Tribunals, Courts & Enforcement Act 2007 established the Senior President of Tribunals office that was appointed by the Queen on basis of the Lord Chancellor’s recommendation. [24] It also falls upon the Lord Chancellor to flexibly create Chambers in consultation with the Senior President of Tribunals with each also having their own Chamber President through a Tribunals Procedure Committee. [25] Moreover, tribunal judgements have been recognised as carrying a right to a warrant of execution or entry with regard to the Register of Judgements, Orders & Fines and also do not have to be registered in the County or High Courts either – although a significant number of tribunals domestically lie beyond the remit of the new system that developed under the Tribunals Service, the Tribunals, Courts & Enforcement Act 2007. Finally, with a view to further enhancing the system, as of 2007 the Council on Tribunals was abolished and replaced by the Administrative Justice & Tribunals Council [26] with over 100 existing tribunals transferred to the supervision of the Council. [27]

To conclude, having sought to analyse the role of tribunals within England and Wales with a view to considering as to whether the tribunal service is a necessary addition to the court system that prevails currently in the domestic legal system it is clear that tribunals provide an additional regulatory mechanism within the system in practice. To this effect the Tribunals Service, the Tribunals, Courts & Enforcement Act 2007 has served to provide for the reform of the tribunal system domestically so as to provide for more stringent regulation for those acting within the system to work effectively. This Act is just the latest in several significant developments with a view to enhancing the system of tribunals since the Frank Report identified three principles regarding tribunals effective and efficient operation – (a) openness; (b) fairness; and (c) impartiality. In addition, the Council on Tribunals was implemented in 1959 to – (i) undertake an ongoing review of the constitution and actual operation of the particular tribunals so as to report on these elements; (ii) evaluate and then report on the issues that are referred to the Council on Tribunals under the terms of the Tribunals & Inquiries Act 1958 regarding tribunals aside from the ordinary courts of law; and also (iii) evaluate and then report on issues that are referred to the Council on Tribunals (or that they deem to be of particular significance) regarding administrative procedures that either involve or could serve to involve a statutory inquiry either by or on a Minister’s behalf. [28]