Comment : The Tribunals Revolution
(July 2007)
Following publication of the Leggatt Report and the Government's White Paper "Transforming Public Services: Complaints, Redress and Tribunals" and after much anticipation it is expected that the Tribunals, Courts and Enforcement Bill will receive Royal Assent this summer. It will establish two new tribunals; the First-tier and Upper Tribunal. The other two major tribunal systems, the Asylum and Immigration Tribunal and the Employment Appeal Tribunal and employment tribunals, will sit outside the new structure but will also be under the general oversight of the new statutory Senior President of Tribunals. Lord Justice Carnwath, Senior President Designate of Tribunals, explains more:
Chambers
The "first wave" of transfers into the new tribunal structure is likely to take place in October 2008. The Bill provides that the Upper Tribunal and the First-tier Tribunal can be organised into a number of "Chambers." The Senior President will also be able to "assign" tribunal judges and members to Chambers, having regard to their knowledge and experience. It is this mechanism that is designed to make the system more efficient as members may be allocated to more than one Chamber allowing members to be deployed across Chambers, as well as to the different jurisdictions within a Chamber.
The final organisation of the Chambers is something that must be agreed between the Senior President and the Lord Chancellor. It is likely that Chambers will be organised according to subject-matter rather than geography. It is too early to tell whether the Upper Tribunal will warrant such formal organisation. However, it is inevitable that those judges and members within the Upper Tribunal will have the following areas of expertise, which the Senior President will want to use in appropriate cases;
- Administrative Appeals
- Tax and Financial
- Lands
Some provisional thinking has also emerged as to how the First-tier Tribunal Chambers, headed by Chamber Presidents, may be organised;
- Social Security
- Tax and Finance
- Mental Health and other welfare appeals
- Regulatory
- Land and Housing (in the future)
The Chambers may evolve over time. For example, the Macrory report "Regulatory Justice: Making Sanctions Effective" (November 2006) recommends that administrative sanctions should replace criminal penalties in the regulatory fields considered and that appeals from these should be dealt with by a dedicated "Regulatory Tribunal." Such appeals could be heard in the future in a Regulatory Chamber using the same tribunal judges and members as other regulatory appeals currently heard by, for example, by the Gambling Appeals Tribunal or the Meat Hygiene Appeals Tribunal.
The Upper Tribunal
The Upper Tribunal will primarily be a specialist appellate tribunal from the First-tier tribunals but will also hear some first instance matters, such as complex tax and finance disputes. The early development of the Upper Tribunal will be an important factor in the success of the Government's reforms. At the very least it will contain the jurisdictions of the Social Security and Child Support Commissioners and the Lands Tribunal, although exactly which of the other jurisdictions will join these will need to be determined during the implementation of the provisions of the Tribunals Bill.
The Bill also seeks to rationalise appeals from tribunals and the Government has already indicated in its' "Detailed Policy Statement on Delegated Powers" that new appeal rights to the Upper Tribunal will be created in tax matters and what are now the jurisdictions of the Mental Health Review Tribunal.
The Bill will also allow the Upper Tribunal to hear judicial review applications; either of a particular class of application or on transfer from the High Court. In order to give the Senior President the flexibility in deciding who will determine a case he will be able to request certain court judges to sit in the new tribunals where this is appropriate.
It is an exciting time in the world of tribunals; watch this space!