Post on 08-Jan-2016
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RECENT CONSTITUTIONAL DEVELOPMENTS IN THE COURTS
OF ENGLAND & WALES
Four Lectures delivered in the
Law Faculty of the University of Trier
by Dr Augur Pearce
Cardiff University
Lecture 1
Tribunals in the Judicial System of England & Wales
The starting-point
• Traditionally England & Wales have enjoyed a unitary court system– Dicey, Law of the Constitution, 1885, contrasted French
administrative law with a system where ‘every man, whatever his rank or condition, is subject to the ordinary law and the jurisdiction of the ordinary courts’
– Administrative law has developed since the 1960s in the Queen’s Bench Division of the High Court
• Compare German Sozial-, Finanz-, Arbeits- and Verwaltungsgerichte
History of Tribunals
• Slow beginnings– 1798 General Commissioners of Income Tax
– 1911 Committee of Referees under the National Insurance Act
– 1929 Attack by Lord Hewart CJ in The New Despotism
– 1932 Donoughmore Report concludes undesirable but necessary
– 1955 Franks Report concludes must be open, fair, impartial, but need not rely on adversarial principle
Arguments for Tribunals
• Expertise – valuation, medical/psychiatric, labour conditions, &c.– not confined to decisions on evidence
• Flexibility – no rules of precedent between co-ordinate tribunals– originally few decisions reported
• Informality leads to speed, economy, popularity– hearsay not excluded, although ‘natural justice’
required– 670,781 cases heard in tribunals in 2007
‘Judicialisation’
• Tribunals & Inquiries Act 1958 – Council on Tribunals established
– Lord Chancellor’s involvement in appointment of Tribunal Chairmen
– Duty to give reasons for decisions on request
– Appeal to High Court on points of law
• European Convention on Human Rights – Art 6: independent & impartial tribunal to determine
civil rights & obligations
New developments
• 2001: Leggatt Report recommends unified Tribunal service
• 2006: extra-statutory creation of the service • 2007: Tribunals Courts and Enforcement Act –
Part I aims:– assimilate practices & procedures– allow member-sharing– rationalise appeal routes efficiency, user-friendliness, new legal career path
New developments
• 2007: Administrative Justice and Tribunals Council replaces Council on Tribunals
• 2007: Lord Justice Carnwath appointed ‘Senior President of Tribunals’ – LCJ-equivalent in the Tribunal world, all-UK
responsibilities
• 2008: Senior President produces two ‘implementation reviews’– judicial oath and titles for ‘Chairmen’
• 2008: New structure effective, 3 November
First-tier Tribunal
• Social Entitlement Chamber– State benefits, criminal injuries compensation, gender recognition
• Health, Education and Social Care Chamber– mental health review, special educational needs, disability
• War Pensions & Armed Forces Compensation Chamber
• Land, Property & Housing Chamber
• Taxation Chamber (from April 09)
• General Regulatory Chamber (from April 09)
Upper Tribunal
• Finance & Tax Chamber
• Lands Chamber
• Administrative Appeals Chamber
further appeal, with permission, to the Court of Appeal
Not [presently] incorporated
• Employment Tribunals• Employment Appeal Tribunal (appeal to Court of
Appeal)
• Asylum & Immigration Tribunal (appeal to High Court)
• Administrative Court (within High Court, QBD)
Conclusion
• An end to the ‘Cinderella status’ of Tribunals
• Perhaps an increased emphasis on Tribunals in English Legal System education?