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Report No. 272

B. Tribunal System in England

2.6 Tribunals are one of the most important pillars of the judicial system of England. A large number of Tribunals have been created to deal with various issues such as social security, property rights, employment, immigration, mental health etc. Most of the Tribunals are concerned with the claims by citizens against the State. Examples of tribunals which operate in the United Kingdom are Employment Tribunals which are concerned with the disputes between private individuals and organisations, Leasehold Valuation Tribunals that are concerned with the disputes between lessees and lessors, over service charges or the valuation of properties.25 Besides this, there are other Tribunals also which deal with the matters falling within their respective jurisdiction. There are significant differences between Tribunals and Ordinary Courts in England which can be summarised as:

25 Creyke, Robin, Tribunals in the Common Law World, The Federation Press, United Kingdom, 2008 at p. 20.

i. There is a special expertise and experience of members. Most of the Tribunals are presided over by a lawyer (serving judge in some cases), he or she will normally be sitting with non-lawyers either having specialised qualifications or laymen or women with specialised qualifications.

ii. Flexibility enables the Tribunal to develop and vary its procedure to suit the characteristics of the jurisdiction and the needs of its users whether unrepresented individuals or sophisticated city institutions.26

26 Id. at 21.

2.7 In England, Tribunals emerged as exclusive judicial bodies in the twentieth century with the establishment of Local Pension Committee under the Old Age Pensions Act, 1908 and the Umpire under the National Insurance Act, 1911. Since then, there has been an increasing recognition of judicial status of the Tribunals as they have developed their own distinctive identity.27

27 Legal Action Group, "Introduction to Tribunals" 15 (2011).

2.8 In 1932, the Donoughmore Committee which was set up to consider the safeguards that were required on judicial and quasi-judicial decisions in order to secure the supremacy of law - a constitutional principle, submitted its Report. 28 The Committee recommended that judicial decisions should be left to the ordinary Courts of law. Tribunals should be established on special grounds and only if their advantages over the ordinary Courts were beyond question, that the rules of natural justice must be observed and the Courts be given adequate power to ensure that they acted within their domain.29 The Committee observed :

28 Ibid.

29 Id. at 4.

The word 'quasi', when prefixed to a legal term, generally means that the thing which is described the word, has some of the legal attributes denoted and connoted by the legal term, but that it has not all of them.

2.9 In 1957, the Franks' Committee30 made a number of specific recommendations and most of them were implemented by the Tribunals and Inquiries Act 1958. These are:

30 Supra Note 11 at 47.

i. Establishment of a Council on Tribunals (an advisory 'nondepartmental public body') to oversee the constitution and working of the various Tribunals. The Chairmen of Tribunals should be appointed by the Lord Chancellor. The members of Tribunals should be appointed by the Council on Tribunals rather than by ministers: this was rejected, though ministers were required to 'have regard to' any general recommendations about membership that the Council might make.

ii. Tribunal Chairman should be legally qualified. This was implemented in respect of some categories of tribunal, but not others.

iii. A Tribunal should give written notice of its decision and the reasons for it. The 1958 Act merely left it to the Tribunals to give their reasons on request.

iv. Hearings should generally take place in the public.

v. There should be a right of appeal to the High Court on points of law: this was broadly implemented by way of a 'case-stated' procedure.31

31 Supra Note 10 at 47.

vi. Parties should be entitled to legal representation and legal aid should be available.

2.10 In 2001, Sir Andrew Leggatt Committee reviewed the existing Tribunal system and submitted its report titled 'Tribunals for Users - One System, One Service'. As per the Report, there were perceived deficiencies in the Court system, such as delay, expense, technicality and formality, lack of expertise and conservative social and political views. Hence, a new 'independent, coherent, professional, cost-effective, user friendly' and structurally reformed Tribunal system was proposed with the intention to strengthen independence, unified administration and harmonised procedures. The Report inter alia suggested:

a. The Lord Chancellor should assume responsibility for all appointments to Tribunals (in consultation, as necessary).

b. The Tribunal System should be divided into Divisions in a structure which is at once apparent to the user in accordance with the subject-matter

c. Members should be appointed to a specific Division, with the ability to sit in other divisions after necessary training.

d. There should be a single route of appeal against the decision of all the Tribunals, to a single appellate Division.

e. There should be Presidents for each of the nine first-tier Divisions. Where possible, there should be made full-time appointments. They should normally be Circuit judges, or senior lawyers.

f. There should be a Tribunals Service Committee to produce a service approach of the highest quality and responsive to the user.

g. The Tribunals Service should be an executive agency of the Lord Chancellor's Department, separate from the Court Service.

2.11 The British Parliament enacted the Tribunals, Courts and Enforcement Act, 2007. The Act, instead of providing for a single Tribunal system, introduced a new system of two generic Tribunals along with providing for a unified appeal structure. Power was given to the Lord Chancellor to transfer the jurisdiction of existing Tribunals to the two new Tribunals. He was also vested with the general duty to provide administrative support to the new Tribunals. A Tribunal service called the 'Transforming Public Services' was set up to provide common administrative support to the newly created Tribunals.32

32 Excerpts from the 'Explanatory Notes to the Tribunals, Courts and Enforcement Act, 2007' prepared by the Ministry of Justice, British Parliament.

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