Andrew Bano

Andrew Bano, a Social Security and Child Support Commissioner, discusses bringing together tribunals into the judicial family in an article which originally appeared in ‘Benchmark’ the judicial newsletter. This article has been reproduced with kind permission of the author and Benchmark team. The 2001 report of the review of tribunals chaired by Sir Andrew Leggatt, Tribunals for Users-One System, One Service, painted a bleak picture. It described a patchwork of tribunals administered by different government departments, each of which had been created by individual pieces of primary legislation, but without any overarching framework. To deal with this problem, the Leggatt report recommended that tribunals should be brought together into a single system, administered by a new Tribunals Service in what was then the Lord Chancellor’s Department. Like many similar reports, the recommendations of the Leggatt inquiry might have gone unheeded, but for human rights concerns. The departments which administered tribunals were usually the rule making authority for their tribunals and paid the salaries and fees of the tribunal members. Since those departments were usually parties to the proceedings before the tribunal, it was evident that tribunals did not have the independence which was required by Article 6 of the European Convention on Human Rights. In July 2004 the Government published its response to the Leggatt report as a White Paper called Transforming Public Service: Complaints, Redress and Tribunals. The White Paper proposed two new generic tribunals: a First-tier Tribunal and an Upper Tribunal, dealing mainly, but not exclusively, with appeals from the First-tier Tribunal. The Tribunals, Courts and Enforcement Act 2007, which received Royal Assent on 19th July this year, created the machinery for transferring existing tribunals into the new unified structure and for the organisation of the new tribunals into ‘chambers’, presided over by a Chamber President. The administration of the Asylum and Immigration Tribunal and of the employment tribunals and the Employment Appeal Tribunal has been transferred into the Tribunals Service, but those tribunals will maintain their existing jurisdictions, as separate ‘pillars’ of the new tribunal system. However, the 2007 Act did much more than simply rationalise the structure of the tribunals. The new systems of judicial appointments and of judicial discipline created by the Constitutional Reform Act 2005 extended to tribunals, but the Act did not deal with other aspects of the position of tribunals in the new constitutional framework. That task was left to the 2007 Act, and as a result of the passing of that Act the constitutional position of the tribunals has for the first time been placed on a proper footing.