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?