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Tribunals

Terms in this set (33)

Purpose of tribunals
independent and judicial statutory bodies that are specialist and hear and determine appeals by individuals against first instance decisions by government officials.
Features of tribunals
reduced need for legal representation. Less formal than courts. Low cost. Inquisitorial and supportive. Look at the facts of appeals and are contextual. Often sit in panels.
How did P. Cane refer to tribunals
as 'freestanding, mono-functional adjudicatory institutions'.
Why reform tribunals?
tribunals were connected to the government so that meant they were investigating cases against themselves/their superiors.
Four Modern Landmarks in Tribunals
The Franks Report - 1957 (led to Tribunals and Inquiries Act 1958); Leggatt Report 2001 (led to the Tribunals Courts and Enforcement Act 2007); Phillips Report 2008 (responded to in Tribunals Scotland Act 2014); Smith Commission (led to provisions on tribunals in s39 of Scotland Act 2016.
Path to reform of tribunals
1. Leggatt Review: tribunals for users: one system one service 2001.
2. White Paper on transforming public services: complaints, redress and tribunals 2004.
3. Tribunals, Courts and Enforcement Act 2007.
4. Tribunals Scotland Act 2014.
5. Scotland Act 2016.
The Franks Report 1957
Catalyst for this was the Crichel Down Affair. The report sought to define tribunals and their place: speed, cost, accessibility, freedom from technicality, expert in subject matter. System to be underpinned by 3 principles: openness, fairness and impartiality. Tribunals to be accountable to higher courts, securing their place in the justice system.
Crichel Down Affair
...
Key criticisms of tribunals in Franks Report
chaotic regime, different procedures and no 'system'.
Which is the key of the 3 principle in Franks Report
Impartiality: Franks pushed for more independent (separate from government) approach and judiciality. There is ongoing tension between this and informality.
Tribunals and Inquiries Act 1958
created the council on tribunals. Gave provisions on appointments, rights of appeal and giving reasons. Restrictions on exclusion of judicial review. This started the trend towards judicialisation.
Diagnosis in the Leggatt Report
in tribunals: insufficient use of resources, lack of independence, lack of coherence, insufficient user-friendliness.
Remedy in the Leggatt Report
To create a system which was 'independent, coherent, professional, cost-effective and user-friendly'.
How did Leggatt plan to implement said remedy?
through a unified two tier tribunal system which was clearly independent from policy departments and headed by a President and with unified administration. Tribunals were to be made more user-friendly so that users could represent themselves. Non-lawyers should sit only on the basis of their relevant expertise. Aimed to harmonise procedure rules and manage performance for members and cases effectively. Furthermore, make effective use of technology.
Tribunals, Courts and Enforcement Act 2007
Implemented Leggatt's recommendations. Introduced two tiers: first tier tribunal and upper tribunal. FTT has 8 chambers and UT has 3. Led by the senior president of tribunals. Uniform onward appeal structure.
What is the onward appeal structure in tribunals?
From First Tier Tribunal to Upper Tribunal and then to Inner House and Court of Appeal.
Scottish Devolved Tribunals
TCEA 2007 didn't apply to Scotland. The Administrative Justice Steering Group Options for the Future Operation and Supervision of Tribunals in Scotland made a report in 2008.
Administrative Justice Steering Group report
system in scotland = 'complex and fragmented'. They raised questions about actual or perceived independence, inconsistency appointment process and isolation of work of tribunals.
When was the Scottish Tribunals Service created?
in 2010, to provide a unified administration for some Scottish Tribunals
What did the Tribunals Scotland Act 2014 do?
Established a new framework for devolved tribunals broadly aligning with the reserved system: first tier tribunal for Scotland and Upper Tribunal for Scotland. FTTS several chambers and UTS divisions.
Who leads Scottish tribunals?
Lord President assisted by the President of Scottish Tribunals
Appeal structure in Scotland now
uniform upward appeals: FTTS to UTS to Inner House
Differences between tribunals and judicial review
Tribunals: make own findings (de novo); substitute initial decision for own decision; jurisdiction limited by statute; directly responsible for considering merits of initial decision. Judicial Review: inherent common law jurisdiction; focuses on legality and doesn't usually fact find; decides if decision is lawful and sends it back if not.
Have tribunals become mini-courtrooms?
chairs are now judges; upper tribunal given a judicial review jurisdiction; emphasis on structure and consistency rather than flexibility and creativity.
Quote about judicialisation of tribunals by Local authority administrator seeking about First Tier Tribunal in 2012
'before it was mediation. It was, 'we've got a little bit stuck now. It's time for somebody independent to help us with this'...[now it is]'we're going to a court of law and I'm bringing a solicitor'.
Onward appeals in tribunals
FTT decisions may be appealed to the UT on a point of law, not about facts. UT may appeal to the inner house or court of appeal.
TCEA 2007 and tribunals and judicial review
Allowed the upper tribunal ability to carry out certain limited judicial review cases.
When is judicial review an option for tribunals?
R (Cart) v Upper Tribunal and Eba v Advocate General for Scotland 2011: restricted to situation where important point of principle of practice is at stake or another compelling reason for review.
How accessible are tribunals now?
ADD STUFF FROM ESSAY
Why is first instance decision making still poor?
They should be taking account of tribunal decisions, but are they? Successful appeal rates change v little over time, most common reasons for overturned decisions are that tribunals elicit additional information at hearings, cases are not reconsidered properly before tribunal hearings and there are problems in weighing evidence
Tribunal appeal success rate stats
30-47% success rate at appeal between 2007-8 and 2013-14 (R Thomas and J Tomlinson 'Current Issues in Administrative Justice 2016)
What is proposed for future reform of tribunals?
Transforming our Justice System in Sept 2016 was a joint statement by the Ministry of Justice, Ford Chief Justice of England and Wales, and Senior President of Tribunals: proposed single judge problem solving approach to free up log jam and make it more like mediation; digital processes by default to save money (v relevant re covid) and more choice of resolution options .
Making sense of online tribunal procedures
Thomas and Tomlinson 'A different tale of judicial power': 'naive to suggest...[above statement] will be a breakthrough moment...[but]it does indicate that there is a need to reform the effectiveness of justice processes...[should not just focus on tribunals/courts]...effectiveness and quality of review decision making also requires improvement'. Saying that something going v wrong at both levels of decisions.
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