Tribunals and Inquiries Flashcards
What are tribunals?
They are a central part of the administrative justice system.
As statutory bodies, they determine appeals by individuals against decisions made by government - in the main, party v party disputes also feature in employment tribunals and land tribunals.
What is a key strength of tribunals?
they provide dissatisfied individuals with the means to challenge, by appeal, decisions of the state that fundamentally affect their lives.
The range of relevant decisions is broad, including the compulsory care and treatment of people with mental health disorders, disputes between tenants and landlords, and cases concerning children and young people with additional support needs
What are the differences between tribunals and JR?
Both are concerned with the accountability of the state but there are significant differences:
(i) Tribunals are responsible for reconsidering the merits of a decision and they can produce their own decision. JR is about ensuring the legality
(ii) Tribunals make their own findings of fact by hearing witnesses/considering evidence. They can conduct ‘De Novo’ review - review from the beginning; JR doesn’t take new evidence and only considers the legality of its decision
(iii) Jurisdictional bases of courts exercising JR vs Tribunals: JR is an inherent common law supervisory jurisdiction. Tribunals are statutory bodies and exercise statutory powers
What are the justifications for the use of Tribunals?
Informality and speed: they are better able to deal with the very high volume of cases generated by the modern administrative state;
JR are sometimes viewed as less accessible for normal citizens;
“Proportionate dispute resolution’: a proportionate relationship between the issues at stake in a dispute and the costs and procedures used to resolve it. Proportionality between the issue and the costs involved;
Effectiveness;
Case management
What is the significance of the ‘Legatt review’?
‘Tribunals for Users: One System, One Service (2001)’: the review concluded that Tribunals had developed in an almost entirely haphazard way with wide variations of practice and approach. This resulted in a fragmented and complex administrative and judicial landscape. The Review advocated for an enabling approach in the conduct of hearings - “A cooperative process of investigation in which both the claimant and the department play their part”
The respective agencies responsible for administering courts and tribunals have merged into HM Courts and Tribunals Service. This aims to ensure judicial independence
What is the significance of the Tribunals, Courts, and Enforcement Act 2007 (TCEA)?
The 2007 Act established a new unified structure by creating two generic tribunals: the FTT (First-Tier Tribunal) and the Upper Tribunal
Upper Tribunal features
Hears appeals on points of law against the FTTs decisions; First instance jurisdiction for specific matters; Develops general Guidance for the benefit of the FTT; It is a ‘superior court of record’: its decisions are binding on tribunals and chambers below
Tribunal Judiciary
2007 Act places the responsibility for recommendations for appointment of tribunal members under the remit of the Judicial Appointments Commission. Significant decrease in the role of lay members
Procedures
The 2007 Act established the Tribunal Procedure Committee which makes rules governing the practice and procedure of Tribunals
Appeals and Review
General right of appeal of decisions of the FTT of the Upper Tribunal by any party on the ground that the FTT has made an error of law. Both tribunals may review a decision made within the tribunal either of its own initiative or on an application by a party to the appeal
Error of law
Making perverse or irrational findings; Failing to give adequate reasons; Failing to take into account conflicts of fact; Giving weight to immaterial matters; Making a material misdirection of law; Procedural irregularity
Appeals against substantive decisions of the Upper Tribunal are made to the Court of Appeal
What is the function of inquiries?
(i) Full and fair amount of the relevant facts/they “get to the truth of the matter”
(ii) They enable government to learn from events to prevent their recurrence
(iii) Restore public confidence or raise public awareness on an issue
(iv) Reconciliation or resolution of difficult issues
(v) “Self-interested” or political considerations
Inquiries Act 2005: How are inquiries established?
Under s1(1) of the 2005 Act Also under s5 of the 2005 Act
Can the Minister’s power to establish/not to establish an inquiry be challenged through JR?
R (Amin) v Secretary of State for the Home Department [2003] UKHL 51:
A family sought to challenged the decision of the Home Secretary not to hold an inquiry in public on the death of their relative who was murdered while in legal custody. They were successful, the Court relied on Article 2 ECHR on the right to life to find that there was an obligation to investigate the death of the petitioner’s relative as it was ‘in the public interest for a public inquiry to be held into the death f. person who at the time of the death was being held in legal custody’. However, should be viewed as fact specific. Not all governmental refusals to hold an inquiry can be successfully challenged through JR.
Unsuccessful attempt example - Key and others v Secretary of State for Foreign and Commonwealth Affairs and another [2015] UKSC 69: The petitioners’ claim under Article 2 ECHR was unsuccessful but they also relied on common law grounds to challenge respondents’ failure to hold an inquiry under the Inquiries Act 2005 s1. They argued that the decision not to establish an inquiry was irrational and disproportionate.
Lord Neuberger [129] and Lady Hale dissenting
Inquiries Act 2005, s2(1)
An inquiry cannot rule on an individual’s civil or criminal liability
