RECENT CONSTITUTIONAL DEVELOPMENTS IN THE COURTS OF ENGLAND & WALES

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?

RECENT CONSTITUTIONAL DEVELOPMENTS IN THE COURTS OF ENGLAND & WALES