Tribunals

In 1957, the Franks Committee found the predominant view to be that tribunals ‘should properly be regarded as part of the machinery of administration, for which Government must retain a close and continuing responsibility'.^[747] The Committee, of course, did not share that view, and the Tribunals and Inquiries Act 1958 more clearly established tribunals as part of the adjudicative, as opposed to admin­istrative, apparatus of the state.

1. Institutional position of tribunals and the separation of powers

The Franks Committee’s insistence on the adjudicative nature of tribunals notwith­standing, they could certainly not, prior to the recent reforms, straightforwardly be characterized as part of the judicial branch. For instance, tribunals were commonly ‘sponsored’ (meaning, among other things, funded) by the very government depart­ments against whose decisions they heard appeals. Such arrangements reflected the fact that tribunals constituted a custom-designed form of accountability, originally tailored for each policy area, rather than functioning as a continental-style admin­istrative court.

The judicial status and independence of tribunals and tribunal judges is empha­sized under the new arrangements in a number of further ways. Legally qualified tribunal members are known as ‘tribunal judges’^[755]—to whom the guarantee of ‘continued judicial independence’ provided for by the Constitutional Reform Act 2005 extends^[756]—and all High Court and Court of Appeal (and equivalent) judges are ex officio tribunal judges.^[757] The Upper Tribunal,^[758] meanwhile, is statutorily designated as a ‘superior court of record'^[759] and is invested with powers of judicial review.^[760] And the new tribunals system is judicially led by the ‘Senior President',^[761] who is currently—and who will normally be^[762]—a Court of Appeal judge (or equivalent).

The upshot of all of this is that tribunals are now situated firmly within the judicial branch. In this sense, then, the distinction between courts and tribunals has largely been eroded—and rightly so. Both courts^[764] and tribunals supply a form of accountability that is adjudicative in nature: their prime focus is upon assess­ing administrative decisions by reference to objective legal criteria, overturning or righting such decisions if they are found to be unlawful or incorrect, and so equivalent cases for judicial-style independence can be made in relation to each.

2. Courts and tribunals: functional differentiation

However, this does not mean that the two sets of institutions should resemble one another in every respect. Certain points of similarity notwithstanding, there have traditionally been—and still are—very substantial differences between what courts and tribunals do, and how they do those things. For instance, tribunals operate in a more informal manner than courts, with the intention that individuals should be able to participate in their proceedings without need for representation.^[765] At the same time, the tribunal system is divided into a number of different jurisdictions, whereas the Administrative Court is generalist in nature.^[766]

These differences exist—and continue to exist—as a matter of empirical fact. But they can be explained, to some extent at least, by reference to two broader differences between courts and tribunals. First, the tribunal system is, and the Administrative Court is manifestly not, a mechanism for supplying mass admin­istrative justice.

Taken together, these overarching distinctions between the respective roles of courts and tribunals help to explain many of the more specific differences between them. For instance, the fact that tribunals are dispensers of mass administrative justice inevitably requires them to be more accessible than the Administrative Court: while procedures have never been uniform across the tribunals spectrum, tribunals generally adopt a more enabling approach, which, at least in theory, facilitates direct participation and obviates the need for representation (for which most complainants would be unable, and the state unwilling, to pay).²⁷ Of course, it is well established that the position of unrepresented parties is often not fully ameliorated by the procedural approach adopted by the tribunal—and that such parties are often surprised by an approach that is more formal and legalistic than they anticipated.²⁸ And even if, as some research suggests,²⁹ lack of representation at hearings is not inevitably of decisive importance, it appears that legal advice prior to a hearing does (unsurprisingly) make a difference to the appellant’s prospects of success.³⁰ The harsh reality, however, is that public funds are not available to provide legal representation or advice to tribunal appellants as a matter of course— and so, as Leggatt acknowledged in 2001,³¹ and as the Justice Select Committee has recognized more recently,³² the emphasis must be upon facilitating effective direct participation in tribunal proceedings.

Against this background, the following dictum of Lady Hale is instructive:

[Tribunals] were set up by statute to administer complex and rapidly changing areas of the law. Their judges were expected to know this law without having to have lawyers for period, and (because the present concern is with individual-versus-government tribunals as an instrument of executive accountability) exclude Employment Tribunals.

²⁶ Admittedly, the Administrative Court, exercising judicial review powers, is more concerned than it once was with questions pertaining to merits (thanks, for instance, to the development of more substantive grounds of judicial review). However, the Administrative Court is not unambiguously and explicitly concerned with merits in the same way as a first-instance tribunal might be.

²⁷ The scope for direct participation was identified by Leggatt as a key characteristic of tribunal adjudication: para.1.11 n 5 above.

²⁸ See, inter alios, Baldwin, Wikeley and 'YoungjudgingSocial Security (Oxford, 1992); Genn ‘Tribunals and informal justice’ MLR (1993) 56: 393; Adler and Gulland, Tribunal Users’ Experiences, Perceptions and Expectations: A Literature Review (London, 2003),11.

²⁹ It appears that unrepresented appellants who receive ‘pre-hearing advice’ do not fare significantly worse than represented appellants: Adler, ‘Tribunals Ain’t What They used to Be’ (ADJUST Newsletter, March 2009). However, public funding (where it presently exists) for such advice is now under threat. See, generally, Justice Committee, Government’s proposed reform of legal aid (HC681-I, 2010-11).

³⁰ Adler, ‘Tribunals Ain’t What They used to Be’, n 29 above; Justice Committee, para.

³¹ Tribunals for Users, paras 7.2-7.6, n 5 above.

³² Justice Committee, para.132, n 29 above.

the parties to explain it to them. Their members were expected to have relevant expertise or experience in the subject matter of the dispute, not only so that they would be able to adjudicate upon factual issues without the help of lawyers for the parties, but also so that the parties could feel confident that the overall balance of the panel (for example between employers and employees) would produce impartial results. Their procedures were also tailored to the subject matter of the dispute and they were not bound by the technical rules of evidence.^[769]

These remarks echo Leggatt’s view that the relative expertise of tribunals—a function of their differentiated nature—may go some way towards facilitating the more effective participation of unrepresented appellants that is essential if tribunals are to function as dispensers of mass administrative justice.^[770] Yet the extent to which such differentiation and expertise will persist within the reformed system is currently uncertain. One of the most eye-catching structural changes ushered in by Leggatt was the consolidation of disparate tribunals into a unified two-tier structure. Most appeals are now heard by the First-tier Tribunal—which is divided into several chambers, many of which are further subdivided into jurisdictions—with a right of appeal on points of law to the Upper Tribunal, which is itself divided into chambers. There are many reasons to welcome these changes: the new structure is more rational, less haphazard, potentially more efficient, and has clearer and more consistent pathways through it in terms of rights of appeal. It is, however, unclear to what extent it will result in the preservation of the expertise of the old, separate tribunals (which was arguably already on the wane, given decreasing reliance upon non-legally qualified chairs and wing members).^[771] Under the new system, judges can be ‘ticketed’ to hear cases falling within more than one jurisdiction within a given chamber, and can also be ‘assigned’ to hear cases in other chambers.^[772] There is therefore at least the possibility^[773] that specialization will diminish under these arrangements.^[774] As Lady Hale has observed, ‘There must be some risk that the amal­gamation of very different jurisdictions in the new chambers will dilute rather than enhance the specialist expertise of their judges and members.’^[775]

It is too early to assess the extent to which cross-ticketing and assignment may have effects of this nature, but it is already clear that the availability of these tech­niques is being capitalized upon. For instance, the President of the Social Entitlement Chamber of the First-tier Tribunal reports that ‘the flexibility of deployment offered by the [new regime] has been seized upon by the Chamber’, with ‘substantial cross-ticketing of judges between [the Asylum Support and Social Security & Child Support jurisdictions within the Chamber] and of medically qualified members between [the Social Security & Child Support and Criminal Injuries Compensation jurisdictions]'.^[776] Meanwhile, there have been ‘assignment exercises between the Social Entitlement Chamber and [three] other Chambers [of the First-tier Tribunal]',^[777] and 26 judges have (by means of assignment) been transferred into the Administrative Appeals Chamber of the Upper Tribunal.^[778]

In his recent study of tribunals adjudication, Cane suggests that tribunals are now best regarded as a species of court, not merely as a court-substitute.^[779] This argument is undoubtedly persuasive, in that tribunals, as well as performing a role that is functionally similar to that of courts (in the sense of adjudicating upon individual disputes according to settled and objective legal principles), also possess many institutional characteristics that are classically associated with regular courts. It is even the case that the Upper Tribunal is statutorily authorized to exercise High Court-style powers of judicial review in limited circumstances.^[780] Nevertheless, the point remains that even if tribunals can, or should, be regarded as a type of court, they continue to supply legal accountability in a manner that makes them readily distinguishable from those regular courts (principally the Administrative Court) that hold government to account.

The raw, pragmatic reason for this consists, of course, in the need for tribunals, unlike the Administrative Court, to act as dispensers of mass administrative justice in a way that is financially sustainable and which therefore (among other things) facilitates direct participation. And although the byzantine nature of the old system was rightly criticized, it reflected, at root, what Lady Hale has called one of the fundamental ‘facts of tribunal life':⁴⁵ namely, that the role, and so the modus operandi, of the tribunal system demands a somewhat differentiated, specialized set of institutions that are able to bring a measure of expertise to bear upon challenges to administrative decisions. Whereas differentiation (being a function of fragmenta­tion) was hard-wired into the old system, this is not true (at least to the same extent) of the new structure. In this sense, a tension lies at the heart of the new system— between, on the one hand, its malleability (and the efficiency interests that will militate in favour of that characteristic's exploitation) and, on the other hand, the need for differentiation and specialization. The new system creates opportunities to trade these interests off against one another in a way that its predecessor did not. This is not to doubt the wisdom of adopting a rationalized structure; but it will be important, as the new system beds down, to ensure that its capacity to dispense high-quality mass administrative justice is not undercut by diluting the expertise of the former individual tribunals through undue invocation of the new structure's greater jurisdictional flexibility.

3. Relationship between the courts and tribunals systems

So far we have considered where tribunals stand today within the accountability system—and, in particular, with reference to ordinary courts—in terms of their institutional status (and independence) and their functional differentiation from regular courts. We now turn to a third, and final, issue. What is the relationship between the new tribunal system and the court system—and what does this tell us about tribunals’ role today?

One of the hallmarks of the pre-2008 tribunals regime was that tribunals’ rela­tionships with ordinary courts were somewhat haphazard, with inconsistencies in terms of the existence, nature and destination of rights of appeal. The position has now been rationalized, the norm being that there is a right of appeal against an administrative decision to the First-tier Tribunal; an onward right of appeal, on a point of law only, to the Upper Tribunal;^[781] and a further right of appeal, again on a point of law only, to the Court of Appeal.^[782] For four interlocking reasons, the effect of this new regime is that it is now relatively rare for ordinary courts to intervene in relation to matters that fall within the purview of the tribunal system.

First, there is little prospect of the Administrative Court judicially reviewing decisions of the First-tier Tribunal, given that in respect of most such decisions there is a right of appeal to the Upper Tribunal. Judicial review, being generally regarded as a remedy of final resort, is normally available only if any alternative remedies (by way of appeal) have been exhausted.^[783]

Second, the latter inhibition upon judicial review does not apply to the small category of First-tier Tribunal decisions against which no right of appeal exists. However, any judicial review of such decisions would most likely be carried out not by the Administrative Court but by the Upper Tribunal. This is because the Upper Tribunal has been invested with statutory powers of judicial review,^[784] and has exclusive judicial review jurisdiction in relation to, inter alia, First-tier Tribunal decisions against which there is no right of appeal.^[785]

Third, the right of appeal to the Court of Appeal against decisions of the Upper Tribunal is highly constricted. It lies (as noted above) only on points of law;^[786] only with the permission of the Upper Tribunal or the Court of Appeal;^[787] only if the appeal would raise ‘some important point of principle or practice’ or if there is ‘some other compelling reason’ for the appeal to be heard;^[788] and does not lie at all in respect of certain matters.^[789]

Fourth, while the statutory scheme does not purport to exclude the possibility of judicial review of the Upper Tribunal, such review will be rare in practice. In Cart^[790] and Eba5 the Supreme Court had to decide on the circumstances, if any, in which an Upper Tribunal decision against which (unusually) there was no right of appeal^{[791] [792]} could instead be challenged by way of judicial review. Endorsing the view of Laws LJ in the Divisional Court,^[793] the Supreme Court held in Cart that the statutory designation^[794] of the Upper Tribunal as a ‘superior court of record' does not formally exempt it from judicial review. However, the Supreme Court also considered that (for reasons addressed below) the Upper Tribunal's decisions should not generally be vulnerable to review. The court therefore held that judicial review of the Upper Tribunal should occur only in cases raising an important point of principle or practice or disclosing some other compelling reason for judicial review. These are, quite deliberately, the same criteria as those which apply to second appeals to the Court of Appeal (both from the Upper Tribunal^[795] and generally).^[796] Those criteria, as they apply generally, have been interpreted quite narrowly,^[797] and in PR (Sri Lanka) v Home Secretary^[798] a powerfully-constituted Court of Appeal^[799] adopted a notably restrictive interpretation of the criteria as they apply to the Upper Tribunal. This is consistent with Lady Hale's observation in Cart that while the ‘adoption of the second-tier appeal criteria' as the means by which to determine the availability of judicial review creates the possibility of a ‘further check, outside the tribunal system', it is ‘not one which could be expected to succeed in the great majority of cases'.^[800]

The upshot is that the new tribunal system is, to a significant degree, self- contained, in that it is subject only to limited oversight by regular courts. In restricting the scope for judicial review (and aligning the applicable criteria with those pertaining to second-tier appeals), the Supreme Court was evidently influenced by pragmatic concerns about the efficient use of scarce judicial resources—a point that emerges from frequent references to the need to avoid extending to complainants ‘dispropor­tionate' opportunities for challenge. As Lady Hale put it, while judicial fallibility means that ‘there should always be the possibility that another judge can look at the case and check for error', ‘it is not obvious that there should be a right to any particular number of further checks after that'.^[801] On this view, then, it may be perfectly proper for denial of permission by the Upper Tribunal to mark the end of the road in a given case. It is significant, however, that, in the tribunals context, neither the first instance judge nor the judge carrying out the ‘check for error' will be a judge of the ordinary courts acting in that capacity.^[802] The question then becomes to what extent, if any, it is necessary for the ordinary courts to exercise oversight. In addressing this matter, the Supreme Court took account of consid­erations of both institutional capacity and constitutional propriety. It sought to balance avoidance of unnecessary ‘duplication of judicial process' (as Lord Phillips put it)^[803] against the need to ensure ‘that errors on important points of principle or practice do not become fossilized within the [tribunals] system' (as Lord Dyson put it),^[804] while acknowledging that it would be inconsistent with the rule of law for ordinary courts to foreclose on the possibility of overseeing tribunals. In concluding that this balance was best struck by limiting review (as well as appeal) by reference to the second-tier appeal criteria, the court acknowledged the institutional compe­tence of the tribunal system. In doing so, it echoed, but crystallized, earlier dicta to the effect that ordinary courts should be slow to conclude that specialist tribunals have committed errors of law, given the relative expertise of the latter.^[805]

One of those dicta^[806] led Sir Robert Carnwath, when Senior President of Tribunals, to postulate (extrajudicially) an ‘antihierarchical approach to the relationship between courts and tribunals', according to which the Upper Tribunal would enjoy substan­tial freedom to develop a distinctive approach to its supervision of the tribunals system.^[807] That freedom would have been more substantial still had the Supreme Court adopted the Divisional Court and the Court of Appeal's view that the Upper Tribunal should be vulnerable to review only in the event of a ‘denial... of fundamental justice'^[808] or an excess of jurisdiction in the narrow (pre-Anisminic) sense.^[809] The Supreme Court's rejection of that view was somewhat elliptical, in that it approached the matter from a perspective different from that adopted by the lower courts. Whereas those courts were centrally concerned with the extent of the Upper Tribunal's legal powers per se, the Supreme Court's concern was with the circumstances in which an allegation that the Tribunal has exceeded its jurisdiction should be capable of being pursued by means of judicial review proceedings.

It is not entirely clear what the Supreme Court would, in the first place, count as an excess of jurisdiction on the part of the Upper Tribunal. In Cart, the Justices certainly rejected (implicitly or explicitly) the lower courts' minimalistic assessment of the limits applying to the Tribunal’s jurisdiction, but it would be surprising if the pre-TCEA 2007 approach favouring restrained review of specialist tribunals did not persist. Lord Dyson, for instance, assumed that it would, and accepted that this, in itself, represented a significant restriction upon the extent of judicial oversight of the tribunal system.^[810] The Supreme Court returned to this matter in R (Jones) vFirst-tier Tribunal. Lords Hope and Carnwath suggested—with disarming frankness—that the distinction between issues of fact and law could legitimately be manipulated, so as to avoid characterizing as (jurisdictional) questions of law matters that ought properly to be left to the expert judgement of a tribunal.^[811] The upshot, then, is that oversight of the Upper Tribunal by ordinary courts is likely to be relatively rare, given the restrictiveness of the second-tier appeal criteria which now constrain both appeal and review; and, even if such oversight takes place, it is likely to be relatively light-touch in nature at least in circumstances where the matter in question engages the expertise of the Upper Tribunal.

It is too early to say with certainty what the practical ramifications will be of the decisions in Cart and Eba, and, in particular, the extent to which they leave intact the potential, identified by Carnwath, for a distinctive tribunals jurisprudence. The likelihood, however, is that much of that potential remains, albeit that whereas the lower courts’ approach carved out a sharply-defined area of autonomy, the Supreme Court’s approach is more subtle. It relies upon limiting the circumstances in which permission will be granted, as well as upon the somewhat elastic concept of deference in the face of relative institutional competence and the (apparently almost infinitely) flexible nature of the law/fact distinction. On this view, then, while tribunals are now a firmly entrenched part of the judicial system, they are a distinctive component of it. In particular, the courts’ willingness—revealed in Cart and Eba—to engage in only very limited oversight of the new tribunals system means that the judicialization of tribunals does not amount to the assimilation of courts and tribunals.

D.