Office of Public Sector Information
122.Tribunals currently have no powers of judicial review. Sections 15 to 21 create a statutory regime which enables the Upper Tribunal to exercise judicial review powers in appropriate cases. This will allow the parties to have the benefit of the specialist expertise of the Upper Tribunal in cases similar to those with which the Upper Tribunal routinely deals in the exercise of its statutory appellate jurisdiction. These provisions do not alter the inherent or statutory jurisdiction of the High Court (as amended by section 141), except as a result of the amendments made by section 19.
123.There will be two situations in which the Upper Tribunal will be able to use these powers in cases arising under the law of England and Wales or of Northern Ireland. The first is where a direction has been made by the Lord Chief Justice or his delegate with the agreement of the Lord Chancellor, specifying a class of case to be dealt with by the Upper Tribunal rather than the High Court. The second is where the High Court orders the transfer of an individual case because it considers it just and convenient to do so in cases arising under the law of England and Wales or of Northern Ireland (but it will not be possible for cases to be transferred to the Upper Tribunal if they involve immigration or nationality matters).
124.Section 15 confers power on the Upper Tribunal to grant certain forms of relief in the same way as the High Court on an application for judicial review. This section needs to be read alongside sections 16 and 18, which set out the circumstances in which the Upper Tribunal has jurisdiction.
125.Where it has jurisdiction, the Upper Tribunal may grant a mandatory order (an order that the respondent does something); a prohibiting order (an order that the respondent stops doing something); a quashing order (an order setting aside a decision); a declaration; or an injunction. These remedies have the same effect as if made by the High Court. In determining whether to grant a remedy, the Tribunal must have regard to the principles of judicial review that would apply in the court from which jurisdiction has been delegated. Therefore the Upper Tribunal’s powers are similar to those of the High Court.
126.Because the Upper Tribunal’s powers are similar to those of the High Court in judicial review cases, the Upper Tribunal’s powers are subject to similar conditions. Therefore it is necessary to have permission to apply to the Upper Tribunal to exercise its judicial review jurisdiction. This may not be granted if the applicant has insufficient interest in the disputed matter. The Upper Tribunal may also refuse permission, or refuse a remedy, if there has been delay in making an application.
127.Awards made by the Upper Tribunal in exercising its judicial review jurisdiction may be enforced as if they were an award of the High Court.
128.Section 17 makes further provision as to the powers of the Upper Tribunal if it decides to grant a quashing order. If it quashes a decision it may also remit the matter for further consideration or substitute its own decision. The Upper Tribunal’s powers are similar to the High Court’s (see section 141).
129.Section 18 sets out the conditions that need to be met for the Upper Tribunal to have power to deal with an application under section 15 for relief, or an application for permission to apply for relief.
130.Subsection (2) stipulates that four conditions must be met before the tribunal may decide the application. These are set out in subsections (4) to (8). If these conditions are not met, the tribunal must by order transfer the application to the High Court (subsection (3)).
131.The first condition (subsection (4)) is that the applicant in question is only seeking a remedy that the Upper Tribunal is able to grant.
132.The second condition (subsection (5)) is that the application does not call into question anything done by the Crown Court. This is because it would be anomalous to give a tribunal, a superior court of record, supervisory powers over another superior court of record.
133.The third condition (subsection (6)) is that the application falls within a specified class of case. The class is designated by a direction made by or on behalf of the Lord Chief Justice with the concurrence of the Lord Chancellor. By virtue of subsection (7), the power to give such directions includes the power to vary or revoke directions that are made, and the power to make different provision for different circumstances.
134.The fourth condition (subsection (8)) is that the judge presiding at the hearing of the application is either a judge listed in paragraph (a) of that subsection or a person within paragraph (b) of that subsection.
135.Subsection (9) stipulates that where an application is transferred to the High Court under subsection (3) above, it must be treated as if it had been made to the High Court in the first place. Under subsection (10), Rules of Court may be made to enable applications, permission or leave to be treated as if they had been made by the High Court. Any such rules for England and Wales will be made by the Civil Procedure Rules Committee.
136.Section 19 amends the Supreme Court Act 1981 and the Judicature (Northern Ireland) Act 1978 to complement sections 15 to 18. As a result, certain applications for judicial review will have to be transferred to the Upper Tribunal where that class of case has been designated by a direction. In addition, the High Court may transfer to the Upper Tribunal individual cases that do not fall within a class specified under section 18(6). However, cases relating to immigration and nationality matters cannot be transferred in exercise of this discretionary transfer power.
137.Section 20 makes provision for the Court of Session to transfer applications for judicial review to the Upper Tribunal. Applications cannot be transferred if they relate to immigration or nationality matters, or if they relate to devolved matters. Also, an application can only be transferred if it does not seek anything other than an exercise of the supervisory jurisdiction of the Court of Session. Subject to those three points, an application will have to be transferred if it falls within a class specified by act of sederunt made with the consent of the Lord Chancellor, and may be transferred even if it does not fall within such a class.
138.Section 21 confirms that the Upper Tribunal will decide applications transferred to it from the Court of Session under section 20 and that the Upper Tribunal has the same powers of judicial review in such cases as the Court of Session.
139.At present, each tribunal has its own rules, and in many tribunals there are multiple sets of rules. Rule-making powers usually rest with the Lord Chancellor or the Secretary of State. They are usually subject to parliamentary procedure, and the Council on Tribunals must be consulted, but there is no standard form or approach, and no statutory requirement to consult stakeholders. In the courts, rules are made by rule committees with judicial and practitioner membership under a unified set of powers, allowing for consistency in the development of procedure. The intention is to replicate this arrangement for the new tribunals.
140.Section 22 provides for the power to make procedural rules for the new tribunals. Subsection (4) states the overriding objective to be followed by the Tribunal Procedure Committee when it makes Tribunal Procedure Rules. This is similar to the overriding objective governing the Civil Procedure Rules. The purpose of the overriding objective is to ensure that the Tribunal Procedural Committee observes certain fundamental principles when exercising its powers to make procedural rules, such as, securing that justice is done in proceedings before a tribunal and that the tribunal system is accessible and fair.
Schedule 5
141.Schedule 5 makes provision for (Part 1) what the tribunal procedural rules may contain, (Part 2) the creation of a Tribunal Procedure Committee with responsibility for making such rules, (Part 3) the process for making them and (Part 4) the power to amend primary legislation in pursuance of a rule change. It is expected that the Committee will develop a wide-ranging programme of work.
142.Part 1 of Schedule 5 sets out matters which may be covered by Tribunal Procedure Rules. It empowers the Tribunal Procedure Committee to make tribunal procedure rules which include provisions in respect of:
The exercise of concurrent functions (paragraph 2)
Delegation to staff (paragraph (3)
Time limits (paragraph 4)
Repeat applications (paragraph 5)
The tribunal acting of its own initiative (paragraph 6)
The extent to which matters may be decided without a hearing and whether a hearing may be public or private (paragraph 7)
Proceedings without prior notice (paragraph 8)
Representation (paragraph (9)
Evidence and witnesses, including provisions relating to the payment of expenses for those attending hearings (paragraph 10)
Use of information (paragraph 11)
Costs and expenses (paragraph 12)
Set–off and interest (paragraph 13)
Arbitration (paragraph 14)
Correction of decisions and setting aside of decisions on procedural grounds (paragraph 15)
143.This is not an exhaustive list and does not limit the broad power in section 22(1) to make procedural rules. Rather, the Tribunal Procedure Committee will exercise its judgement, within the process set out in Part 3 of Schedule 5, to determine which rules are needed in each jurisdiction. It is not intended that each jurisdiction will have rules that cover every aspect listed. Rather the list in Part 1 includes matters which could be considered an extension of the general provisions in section 22.
144.Paragraph 15, which deals with the correction of decisions and the setting aside of decisions on procedural grounds, does not enable rules to restrict the review powers in sections 9 and 10. Rather, this paragraph allows for rules to allow certain matters to be reviewed otherwise than by a tribunal under sections 9 and 10. For example rules made in reliance on paragraph 15 could provide for a member of staff to correct an accidental error.
145.Part 2 of Schedule 5 provides for the membership of the Tribunal Procedure Committee. The provisions governing the membership and responsibility for appointing members of the Tribunal Procedure Committee are loosely modelled on those for the rule committees making rules of court but are more flexible because of the diverse nature of tribunals. The Committee is intended to consist of core members and additional members appointed as and when required to provide jurisdiction-specific knowledge.
146.The core membership consists of the Senior President or a person nominated by him, three people with experience of practice in tribunals or giving advice to persons involved in tribunal proceedings, a person nominated by the Administrative Justice and Tribunals Council, a judge from each of the tribunals, a tribunal member and a person with experience in and knowledge of the Scottish legal system. The Lord Chancellor’s role is limited to selecting persons with experience of tribunal proceedings or practice and appointing the member selected by the Administrative Justice and Tribunals Council. Consistent with the Concordat, the selection of judicial members falls to either the Lord Chief Justice or the Lord President.
147.Paragraph 24 provides that any additional members are appointed (at the request of the Senior President of Tribunals) by the Lord Chief Justice of England and Wales, the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland. It is expected that additional members will usually be members of the judiciary. The additional members are intended to bring specialist knowledge to the Committee when discussing particular matters.
148.Under paragraph 25, the Lord Chancellor may make changes to the composition of the Committee, but only with the concurrence of the Lord Chief Justice of England and Wales. The concurrence of the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland is necessary where such a change would affect a member appointed to the committee by them. The composition of the Tribunal Procedure Committee may need to vary depending on the jurisdiction for which it is making rules and as jurisdictions transfer in.
149.Part 3 of Schedule 5 details the process by which Tribunal Procedure Rules are to be made. This is consistent with the process for making Civil, Family and Criminal Procedure Rules. The Committee is required to consult before rules are made. In order for the rules to be submitted to the Lord Chancellor they must be approved by the Committee. The Lord Chancellor’s powers once rules are submitted to him are limited to powers to allow or disallow. However, the Lord Chancellor does have the power to specify a purpose which must be achieved by rules. This is to ensure that, although the Tribunal Procedure Committee is independent, the Lord Chancellor is able to set objectives for the rules.
150.Once allowed by the Lord Chancellor, rules made under this process are subject to negative resolution procedure.
151.Part 4 of Schedule 5 gives the Lord Chancellor power to amend, repeal or revoke any Act in pursuance of a rule change. This power is based upon the provisions in the Civil Procedure Act 1997. An order exercising this power is subject to affirmative resolution procedure. The aim of this provision is to ensure that tribunals operate smoothly and without conflicting with legislation on the statute book.
152.Section 23 provides the Senior President with the statutory authority to supplement Tribunal Procedure Rules by means of practice directions. These directions may (for example) take the form of guidance, interpretation of the law, matters of precedent or the delegation of judicial functions to senior members. The giving of practice directions is one of the functions that the Senior President may choose to delegate to Chamber Presidents under section 8. Following the Concordat, practice directions made either by the Senior President or a Chamber President will usually require the Lord Chancellor’s approval. There are two exceptions. The first is where practice directions consist of guidance about the application and interpretation of law or the making of decisions. The second exception is where practice directions consist of criteria for determining which members of the tribunals may be chosen to decide particular categories of matter. Practice directions given by a Chamber President in his own right (i.e. as opposed to directions given by him when exercising, under a delegation, the Senior President’s power to give practice directions) will always require the Senior President’s approval, whether or not they also require the Lord Chancellor’s approval.
153.Mediation and other forms of alternative dispute resolution are used increasingly in the justice system. They can provide more efficient and effective remedies, at lower cost and with less pressure on users. Section 24 has been designed to provide the statutory basis for mediation. The use of mediation in tribunal proceedings can be governed both by Tribunal Procedure Rules and by practice directions. It is neither intended nor envisaged that mediation will take place in all jurisdictions, although the term mediation can encompass a broad spectrum of activity. The section will enable staff appointed for the employment tribunals, EAT and AIT, as well as staff appointed for the First-tier and Upper Tribunals, to act as mediators in relation to disputed matters in proceedings before the First-tier or Upper Tribunal.
154.Section 25 provides the Upper Tribunal with the powers of the High Court or Court of Session to require the attendance and examination of witnesses and the production and inspection of documents, and all other matters incidental to the Upper Tribunal’s functions. These are similar powers to the Employment Appeal Tribunal’s powers under section 29 of the Employment Tribunals Act 1996.
155.Section 26 provides for the First-tier Tribunal or the Upper Tribunal to sit anywhere in the United Kingdom irrespective of the law under which a case arises. This will allow the flexible listing of cases for hearing in accordance with the needs of tribunal users. It does not, however, allow a tribunal to decide which law it wants to apply.
156.Subsections (1) to (3) ensure that monetary awards made by the First-tier and Upper Tribunals are enforceable through the courts. These provisions do not alter the methods of enforcement by the courts.
157.Many tribunal awards in England and Wales are currently enforced through the county court, but there are some where enforcement is currently through the High Court (e.g. the Lands Tribunal where enforcement may be through either court, and the Transport Tribunal where enforcement is in the High Court). Subsection (1) states that a sum payable following a decision of either the First-tier or Upper Tribunal will be recoverable as if it were payable either under an order of a county court in England and Wales or an order of the High Court in England and Wales.
158.Subsection (2) makes corresponding provision for Scotland. An order for payment made as a result of a decision of either the First-tier or Upper Tribunal made in Scotland (or a copy of such an order certified in accordance with Tribunal Procedure Rules) may be enforced as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland (i.e. without the intermediate step of registering the decision with the sheriff court).
159.Subsection (3) makes corresponding provision for Northern Ireland. An order for payment made as a result of a decision of either the First-tier or Upper Tribunal in Northern Ireland will be recoverable as if it were payable under either an order of a county court or the High Court in Northern Ireland.
160.Subsection (4) provides that the enforcement provisions in the preceding subsections do not apply to awards of damages, restitution or the recovery of a sum due made to an applicant by the Upper Tribunal exercising its judicial review powers under sections 16(6) or 21(1), because enforcement of such awards is dealt with in sections 16(7) and 21(4).
161.Subsection (5) empowers the Lord Chancellor to make an order (applying to England and Wales or to Northern Ireland) stipulating that a sum of a description specified in the order (payable in pursuance of a decision of the First-tier or Upper Tribunal) may be recoverable as if it were payable either under an order of a county court, or under an order of the High Court, but not both.
162.Subsection (6) allows for Tribunal Procedure Rules to be made which spell out where for the purposes of the enforcement provisions a decision is to be taken to have been made. This is necessary due to the different enforcement methods that apply to Scotland compared with England and Wales. Rules might, for example, provide that where a tribunal is sitting in Scotland to hear a case arising under the law of England and Wales, any sum payable in pursuance of a decision of the tribunal is recoverable as if the decision had been made in England and Wales. Subsection (6) also allows Rules to provide for some sums not to be recoverable under the provisions of the section. This might be appropriate where the particular legislation under which a tribunal is acting contains its own procedures for enforcing awards.
163.An assessor is an expert who is appointed by a court or tribunal to assist it in dealing with issues within the assessor’s area of expertise. Some tribunals already have a power to appoint assessors and this section will allow this practice to continue within the new tribunals. This section provides the First-tier Tribunal or the Upper Tribunal with the power to appoint an assessor to assist where it is dealing with matters that require a special expertise that the tribunal would otherwise not have available to it. This provision will not require an assessor to be used where it is inappropriate to the jurisdiction.
164.The powers of many tribunals to award costs are currently limited, either because they have no such powers, or because the scope of any power they have is limited. This section grants the tribunals the discretion to order costs and expenses in the same way as courts. It is not intended that these provisions will apply in all jurisdictions, rather that there will be flexibility as part of the creation of the new system to determine where a costs regime would be appropriate and whether there should be any limits to such a regime (for example, that costs should be awarded only against a party who has acted vexatiously or unreasonably). Subsection (1) is subject to provision made under the Tribunal Procedure Rules so as to allow for such flexibility.
165.The transfer of jurisdictions to the new tribunals is a central feature of the Act. This section provides the Lord Chancellor with the power to transfer jurisdictions from those tribunals listed in the relevant Parts of Schedule 6 to either of the two new tribunals or the employment tribunals or the Employment Appeal Tribunal. In this way adjudicative functions which are currently spread across a wide range of tribunals can be consolidated into the new tribunals and the employment tribunals and Employment Appeal Tribunal.
166.Subsection (1) empowers the Lord Chancellor to provide for the functions of a tribunal to be transferred to the First-tier Tribunal, Upper Tribunal or the First-tier and Upper Tribunals, with the question as to which of them is to exercise the function in a particular case being determined by a person under provisions of the order or by, or under, Tribunal Procedure Rules. It also provides for the transfer of a function to the First-tier Tribunal to the extent specified in the order, and to the Upper Tribunal to the extent so specified. It provides similarly for transfers to an employment tribunal, or the Employment Appeal Tribunal.
167.Subsection (3) provides that the Lord Chancellor may further transfer functions in accordance with the provisions of subsection (1).
168.The general policy of subsections (5) to (8) is to restrict devolved functions from being transferred to the new tribunals.
169.Under subsection (5), the general rule is that functions of tribunals which are within the legislative competence of the Scottish Parliament or the Northern Ireland Assembly (i.e. devolved) may not be transferred to the First-tier Tribunal or Upper Tribunal under section 30.
170.Subsections (6) and (7) set out some exceptions. Functions in relation to appeals relating to estate agents and consumer credit, and criminal injury compensation appeals, may be transferred. But transfer of functions relating to criminal injury compensation appeals in Scotland will require the consent of Scottish Ministers.
171.Subsection (8) provides that if any functions relating to the operation of a tribunal, or expenses for attending the tribunal, are exercisable by the Welsh Ministers, functions of that tribunal may be transferred under section 30 only with the consent of the Welsh Ministers.
172.Where functions are transferred under section 30, supplementary powers are needed to give the transfer full effect. Subsection (1) confers power on the Lord Chancellor to provide by order for the abolition of a tribunal whose functions have been transferred under section 30.
173.Orders abolishing tribunals will be brought into force at the point of transfer of their functions (or should the functions of a tribunal be transferred in stages, at the point of transfer of the last of their functions), thereby removing redundant organisations from statute.
174.Subsection (2) enables the Lord Chancellor, in transferring functions of a tribunal listed in Schedule 6, to provide for members of the tribunal who are judicial office holders to have a new office within either the First-tier Tribunal or the Upper Tribunal.
175.Subsection (5) provides that the power under subsection (2) to transfer office-holders into the new tribunals is not available as respects any person whose existing office is that of Commissioner for the General Purposes of Income Tax. That office is abolished by paragraph 1(1) of Schedule 8 to the Act. The offices of General Commissioner of Income Tax and of Clerk to the General Commissioners are expected to be abolished at the point that the functions of the General Commissioners are transferred.
176.Subsections (7) and (8) allow the Lord Chancellor to provide by order for the continuation of procedural rules following a transfer of functions, if necessary by modification of those rules.
177.At the point of transfer, orders can be brought into force transferring the existing sets of rules that govern procedure for the tribunals. Minor modifications may be made to the sets of rules where functions are to be transferred to a new tribunal so that they align with the provisions of the Act.
178.Subsection (9) enables the Lord Chancellor to make, by order, incidental, supplemental, transitional or consequential provision, or provision for savings, to facilitate: a transfer under section 30 of functions of tribunals; the appointment of tribunal judiciary to offices created by the Act; and the transfer of procedural rules.
179.To facilitate the smooth continuation of tribunal business at and beyond the point of transfer, orders will need to make provision for completion of all work underway in the tribunals at the point of transfer of their functions. The orders will also be able to ensure that references to tribunals that have been abolished are removed from statute.
180.Where a jurisdiction is exercised by separate tribunals for England and Wales, difficulties could arise if there were different routes of onward appeal for the English and Welsh tribunals.
181.Section 32 therefore provides for an appeal to the Upper Tribunal from tribunals in Wales in two circumstances. Subsections (1) and (2) deal with a situation where the functions of a tribunal covering both England and Wales are transferred to the First-tier Tribunal in respect of England only. Subsection (3) deals with appeals from tribunals which already have a separate existence in Wales, and which are listed in Part 7 of Schedule 6.
182.Subsection (2) empowers the Lord Chancellor to provide for appeals from a decision of a tribunal in a Welsh case to be made to the Upper Tribunal instead of to a court. An example of how the power could be used is as follows. An existing tribunal operates in Wales under legislation that is the same as, or corresponds to, the legislation under which the tribunal operates in England. An appeal can be made to a court against decision made by the existing tribunal. The existing tribunal’s functions in England are transferred to the First-tier Tribunal under section 30. When the First-tier Tribunal makes a decision in England under the transferred function, any appeal has to be made not to that court but to the Upper Tribunal. Subsection (2) could be used to provide that when the existing tribunal makes a decision in Wales, an appeal against that decision has to be made not to that court but to the Upper Tribunal.
183.Subsection (3) empowers the Lord Chancellor to provide for an appeal against a decision of a scheduled tribunal to be made to the Upper Tribunal, where the decision is made by the tribunal in exercising a function in relation to Wales. The power enables an existing right to appeal from the tribunal to a court to be converted into a right to appeal from the tribunal to the Upper Tribunal.
184.Where a tribunal jurisdiction is transferred to the new tribunals under section 30, and such a jurisdiction is not transferred in relation to Scotland, section 33 creates a power for the Lord Chancellor to provide (by order) for an appeal to the Upper Tribunal against a corresponding decision made in exercising the untransferred Scottish jurisdiction.
185.An order under the section provides for the situation where the functions of a tribunal are to be transferred in respect of England, or England and Wales, but not in respect of Scotland; and where there is a right of appeal to the Upper Tribunal from decisions made in exercising the transferred jurisdiction in England, but no right of appeal from the decisions made in exercising the untransferred Scottish jurisdiction.
186.Section 34 provides a power (analogous to that provided in section 33 in respect of Scotland) for a new appeal right to the Upper Tribunal from tribunals in Northern Ireland where the equivalent tribunal jurisdiction in England has been transferred (most likely) to the First-tier Tribunal and there is a new appeal right in England to the Upper Tribunal.
187.Section 35 makes it possible to transfer to the Lord Chancellor administrative functions of other ministers (and functions of the Commissioners for Her Majesty’s Revenue and Customs) in relation to tribunals listed in Schedule 6. The power is similar to the power under section 1 of the Ministers of the Crown Act 1975 which enables transfer of functions between ministers.
188.Subsections (8) and (9) taken together prevent functions transferred to the Lord Chancellor from being transferred to another Minister of the Crown under subsection (1) or under the Ministers of the Crown Act 1975. This will replicate the effect of section 19 of, and Schedule 7 to, the Constitutional Reform Act 2005, entrenching judiciary-related functions in the office of the Lord Chancellor, and so helping to secure the independence of tribunals from the departments formerly responsible for them.
189.Section 36 enables the Lord Chancellor by order to transfer power to make procedural rules for certain tribunals to himself or to the Tribunal Procedure Committee.
190.Most of the powers that may be transferred under this section are currently exercisable by the Secretary of State. This power will allow the Lord Chancellor to:
standardise the process for making rules for those tribunals whose functions are not scheduled to transfer into the new tribunal structure; or
cater for the possibility that tribunal rules need to be made before the Tribunal Procedure Committee is operational; or
transfer the responsibility for making rules for particular tribunals to the Tribunal Procedure Committee before their functions are transferred to the First-tier Tribunal or Upper Tribunal.
191.The Act as enacted does not confer power to transfer the Secretary of State’s power to make procedural rules for the employment tribunals.
192.Section 37 gives the Lord Chancellor the power to amend the lists of tribunals in Schedule 6 to the Act by: addition to a list; removal from a list; removing a list from the Schedule; or adding a list of tribunals to the Schedule.
193.The power is constrained by subsections (2), (3) and (4):
Under subsection (2)(a), a tribunal created otherwise than by or under an enactment (e.g. a private tribunal of some kind) cannot be brought within the new structure.
Under subsection (2)(b), tribunals created after the last day of the Session in which the Act is passed (likely to be a day in October/November 2007) may not be added to any of the lists of tribunals in Schedule 6. If the First-tier Tribunal or Upper Tribunal is to have jurisdiction created by later legislation then it will need to be conferred by that later legislation rather than transferred using the machinery of section 30. As the First-tier and Upper Tribunals are all-purpose in nature it is not expected that there will be a need to create any new tribunals.
Subsections (2)(c) and (3) preserve the position of the Welsh Ministers by requiring the consent of the Welsh Ministers where they have a power in relation to a tribunal.
Subsection (4) prevents the power being used to bring any of the ordinary courts of law into the new tribunal structure. The terms “tribunal” and “ordinary court of law” are not defined but follow the terminology used in the Tribunals and Inquiries Act 1992.
Schedule 6
194.Schedule 6 has to be read alongside sections 30 to 36 of the Act. Schedule 6 describes which of sections 30 to 36 apply to the various tribunals listed in the Schedule. There are three main powers that the Lord Chancellor can exercise in relation to the tribunals listed in the Schedule: section 30 deals with the transfer of tribunals’ functions, including adjudicative functions; section 35 deals with the transfer of executive functions in relation to tribunals to the Lord Chancellor; and section 36 deals with the transfer of rule making powers to the Lord Chancellor and the Tribunal Procedure Committee.
195.Because of the number of permutations, Schedule 6 as enacted contains seven lists:
Part 1: tribunals where all three types of function can be transferred.
Part 2: tribunals where only the adjudicative and executive functions can be transferred. There are no rule-making powers to transfer.
Part 3: tribunals where only the adjudicative and rule-making powers can be transferred because all executive functions are already with the Lord Chancellor.
Part 4: tribunals where only the tribunal’s functions can be transferred.
Part 5: tribunals where executive functions can be transferred to the Lord Chancellor and rule-making functions to the Tribunal Procedure Committee or Lord Chancellor but there can be no transfer of the tribunal’s functions.
Part 6: tribunals where only executive functions can be transferred. No change is intended to the tribunal’s functions, and rule-making powers are to remain with the Secretary of State, as indicated in Transforming Public Services.
Part 7: tribunals in Wales where onward appeals can be to the Upper Tribunal instead of the courts.
196.This section provides for power to amend, repeal or revoke enactments in connection with orders under sections 30 to 36 (i.e. covering the transfer of functions of tribunals; abolition of tribunals; mapping of tribunal judicial office holders to the offices established by the Act; continuation of tribunal procedural rules after transfer of functions; incidental, supplemental, transitional and consequential provisions; appeal routes for tribunals in Wales; appeal routes for tribunals in Scotland; appeal routes for tribunals in Northern Ireland; transfer of ministerial responsibilities for tribunals; transfer of power to make tribunal procedural rules).
197.Section 39 places the Lord Chancellor under a statutory obligation to ensure there is an efficient and effective system of tribunal administration. The duty is framed in respect of the First-tier Tribunal, the Upper Tribunal, the employment tribunals, the Employment Appeal Tribunal and the Asylum and Immigration Tribunal. It mirrors section 1 of the Courts Act 2003, which sets out the Lord Chancellor’s duty in respect of the courts in England and Wales. It is intended to show that tribunals are to be treated no less favourably than the courts.
198.Sections 40 and 41 are modelled on sections 2 and 3 of the Courts Act 2003 and grant the Lord Chancellor similar powers to provide staff, services and accommodation for tribunals. Section 40 allows the Lord Chancellor to employ civil servants as tribunal staff, so that he can discharge his duty of administering the tribunals and providing support services.
199.Subsection (2) enables the Lord Chancellor to contract out certain functions. However, subsection (3) (like section 2 of the Courts Act 2003), prohibits the Lord Chancellor from contracting out functions which involve making judicial decisions or exercising any judicial discretion.
200.A small number of tribunals listed in Schedule 6 have contracted out some staff functions. Examples include the Lands Tribunal, where some staff functions relating to the maintenance of the Tribunal’s library are contracted out; and the AIT, where typing services are contracted out.
201.Where it is decided that administrative functions are best delivered by contracting out, an order will be made under subsection (4) enabling contracts to be signed. Orders will be made only after consultation with the Senior President under subsection (5).
202.Section 41 gives the Lord Chancellor power to provide, equip, maintain and manage tribunal accommodation.
203.Section 42 has been designed to cover in part those tribunals which currently charge a fee for their services and in part the possibility that at some point in the future it may be appropriate to charge fees in other or new jurisdictions.
204.Under subsection (1) the Lord Chancellor will have a power to prescribe, by order, fees to be paid for anything done in the new tribunals, in the Asylum and Immigration Tribunal and in any other statutory tribunal added to the list by order (under subsection (3)), subject to the affirmative resolution procedure. The corresponding power in respect of court fees under section 92 of the Courts Act 2003 can be used to recover running costs of the courts. Similarly, it is considered that the power under section 42 could be used to set fees at a level designed to recover from users of tribunals some or all of the running costs of (or of a part of) the tribunals concerned.
205.Subsection (5) stipulates that before making an order under section 42, the Lord Chancellor must consult the Senior President and the AJTC.
206.Treasury consent will not be required for changes to existing fee levels (subsection (6)). Where a fee is introduced in an area where a fee has not previously been payable, section 49(6)(c) requires that the order is subject to the affirmative resolution procedure. Section 42 also confers power to set fees for the conduct of mediation by tribunals staff appointed under section 40(1) but, since this section establishes the principle of fees being set for this, the negative resolution procedure will be used when setting them.
207.Section 43 requires the Senior President to give the Lord Chancellor a report on the cases that have come before the First-tier Tribunal and the Upper Tribunal in each year. The report will also cover cases coming before the employment tribunals and the Employment Appeal Tribunal. This provision is intended to support improvement both in the workings of the tribunals and the standard of decision-making and review in cases which come before the tribunals. Section 43 gives the Senior President some flexibility in deciding which matters should be covered in the report, and the Lord Chancellor some flexibility in deciding which matters are a priority for the report.
Tribunals, Courts and Enforcement Act 2007