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.
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