Courts in all but name

The Tribunals, Courts and Enforcement Act 2007 (TCEA) has brought around a fundamental change to the structure of tribunals, creating a system that is analogous to the court structure.(1) This Act has put the tribunal system onto a new statutory footing and has consequently embedded tribunals into “the very fabric of the judicial system”.(2) This essay will study the extent, and the ways, in which the recent reforms have carried forward the judicialisation of the tribunal system. Additionally, it will look at the benefits and the costs that attach to such a trend.

In order to achieve this we will begin with a brief outline of the Leggatt report, which set the prerequisite foundations for the TCEA. This will allow us to examine Leggatt’s diagnosis of what was wrong with the existing tribunal system and his recommendations for putting things right.(3)

The Leggatt report

In May 2000, the Lord Chancellor appointed Sir Andrew Leggatt to carry out a review of the tribunal system. Leggatt was concerned that “citizen versus state” tribunals were not sufficiently independent from the departments that sponsored them.(4) The report outlined that tribunals should be more like the court system: independent legal bodies separate from government. This was the driving force behind Leggatt’s recommendation that all tribunals should be brought together into a unified Tribunals Service. This would shift tribunals to the same position as the court service and thus judicialise the tribunal system.

Although the Leggatt Review encouraged a “court like” system, it also encouraged the tribunal system to be as user friendly as possible. It put forward that “tribunal procedures [should be] so user friendly that, in the majority of cases, users would be able to represent themselves”.(5) This would therefore be moving away from the typical procedure of courts, which is predominantly an adversarial and complex process. This could be seen as negative because it is not “user friendly”, and hence a barrier to natural justice.

In July 2004, the Government issued a white paper implementing the Leggatt proposals.(6) It addressed tribunal reform in the wider context of what it called “proportionate dispute resolution” (PDR). This was with the aim of developing a wide range of policies that would help people to avoid legal disputes. However, if the legal dispute could not be avoided, then it should be dealt with in a quick and cost-effective way.(7) This would put the user first, rather than government. However, can cheap and quick justice be effective justice? In order to answer this question we will look at the TCEA and how it has changed the tribunal system; this will allow us to assess whether the changes have been beneficial or perhaps detrimental to the tribunal system.

The 2007 Act

One of the main features of the new system is that there is a structure. Previously, tribunals had separate jurisdictions and their own procedures.(8) All those aspects have now changed. There are two new tribunals, generic rules of procedure, and a coherent system of appeals, all under the auspices of a Senior President. Furthermore, the legislation created two tribunals: the Upper Tribunal and the First-tier Tribunal. The former can hear appeals from the latter and is at “the apex of the unified, two-tier structure”.(9) And furthermore, its head is a Court of Appeal judge.(10) This is comparable to the courts, thus demonstrating the extent of judicialisation within the tribunal system.

Moreover, the Upper Tribunal has an initial appellate role in hearing appeals from decision makers in the more complex or sensitive cases.(11) As well as its appellate function, the Upper Tribunal has power to hear judicial review cases.(12) Furthermore, the Upper Tribunal is a superior court of record.(13) It has the same authority as the High Court in matters related to its functions.(14) This therefore shows that tribunals have evolved from being subordinate to the courts to having equal standing. This further demonstrates the extent to which the tribunal system has been judicialised.

As outlined above, the tribunal system is parallel to a court structure in the sense that there is a unified system that is independent from government. There is also a route of appeal. This would appear to be a benefit of the judicialisation of the tribunal system as it allows there to be a coherent and comprehensible system, promoting confidence and easier accessibility.

The vast majority of tribunals that are governed by the TCEA are concerned with disputes between the “citizen and the administration”.(15) However, there are many exceptions. For example, employment tribunals deal with various types of employment disputes. There are also tribunals that deal with asylum, land issues or mental health. In this sense, tribunals are not quite the same as courts. They can be described as having many of the same features of courts, but with the additional bonus of having specialists, flexibility and greater informality. Lord Neuberger, who describes tribunals as “courts plus”, supports this hypothesis. For Neuberger, the “plus” is the specialist expertise, greater flexibility, tailored procedures, and greater informality.(16) Hence, if we apply this, tribunals do reflect courts in the sense that they have a unified structure and procedures, but at the same time they have maintained some of their original qualities. This would appear to benefit the user.

As we have outlined, tribunals do reflect the courts in their structure and procedures. Additionally, the TCEA has confirmed the status of the tribunal judges as part of the independent judicial system, extending them to the same “guarantees of independence as apply with the judges in ordinary courts”.(17) Furthermore, appointments to tribunals are part of the independent Judicial Appointments Commission, which is also responsible for selecting judges for ordinary courts. This validates that the selection process for tribunals is similar to that of courts. This accordingly illustrates the extent of judicialisation within the tribunal system. This could be a negative, as it is a somewhat bureaucratic procedure.

Modern standards

The tribunal system does have similar features to the court system, and there is “an evolutionary tendency to systematise and judicialise the structure and working of tribunals”.(18) This has been demonstrated through the Leggatt review, which sought to have a unified tribunal system that was not part of the administration of government but was instead an autonomous legal entity. The Leggatt review also sought to make the tribunal system as user friendly as possible. However, as outlined throughout this essay, we can see that some of the old informalities are being slowly eclipsed.

Furthermore, the Leggatt review adopted the philosophy that anyone should be able to appear before a tribunal without legal representation. However, as the tribunal system is becoming more like the court system, this is becoming less likely. Users of the tribunal system will perhaps feel that they need representation, as they will not have the confidence to speak in a tribunal that strongly resembles a court. This is of course seen as a negative to judicialisation of the tribunal system.

However, when an appeal does reach a tribunal, is it not in everyone’s benefit that it is dealt with in a systematic and professional way that has “regard both to the legitimate expectations of users and to modern human rights notions of due process”?(19) Giving consideration to the latter, we can see that while there are advantages and disadvantages to the judicialisation of the tribunal system, the advantages appear to outweigh the drawbacks.

References

(1) Edward Jacobs, “Something old, something new: the new tribunal system” [2009] ILG 417.
(2) Gavin Drewry, “The Judicialisation of ‘Administrative’ Tribunals in the UK: From Hewart to Leggatt” (2009) 28 Transylvanian Review of Administrative Sciences 45 at 47.
(3) M Adler, “The Slow Road to Tribunal Reform” (2004) 39 Benefits: A Journal of Social Security Research, Policy and Practice 13.
(4) Sir Andrew Leggatt, Tribunals for Users – One system, One Service (Norwich: The Stationery Office, 2001).
(5) (2004) 39 Benefits: A Journal of Social Security Research, Policy and Practice 13.
(6) Department for Constitutional Affairs, 2004.
(7) Ibid, para 2.2; Adler 2004.
(8) [2009] ILG 417.
(9) Emma Laurie, “Assessing the Upper Tribunal’s potential to deliver administrative justice”, [2012] Public Law.
(10) TCEA, s 2.
(11) For example, Safeguarding of Vulnerable Groups Act 2006.
(12) TCEA, s 15.
(13) TCEA, s 3(5).
(14) TCEA, s 25.
(15) 28 Transylvanian Review of Administrative Sciences 45 at 56.
(16) Lord Neuberger, “Talk to the Upper Tribunal on the relationship between the tribunals and the higher courts”, July (2009), para 4.
(17) 28 Transylvanian Review of Administrative Sciences 45 at 55.
(18) Ibid, 57.
(19) Ibid, 57.