The government is proposing a two-tier unified tribunal system. But lawyers are concerned that lowering the eligibility criteria for judges will erode standards, reports Derek Bedlow

From humble beginnings, tribunals of all kinds have grown to become an important cornerstone of the country’s judicial system.


Each was established by primary legislation in response to a perceived need at the time, and their piecemeal development has resulted in a fragmented system in which powers, protocols and appeal procedures vary widely between tribunals, with responsibility for their operation shared between several government departments.


There are currently scores of different tribunals, ranging from the mainstream – such as the employment tribunal and the mental health review tribunal – to more unusual examples such as the sea fish licence tribunal, the plant varieties and seeds tribunal, and even the Antarctic Act tribunal.


Now the Department for Constitutional Affairs (DCA) is attempting to bring responsibility for the system under one roof. This process has already begun with the transferral of six tribunals, including the employment and mental health review tribunals, to the DCA in April this year, but the more important changes to the system are contained in the Tribunals, Courts and Enforcement Bill it published in July. The consultation on the Bill closed at the end of September (see [2006] Gazette, 12 October, 8).

The first draft of the Bill runs to more than 500 pages, but the main proposals as they relate to tribunals are for unification of their judiciary under a single president; the creation of a statutory framework for tribunals to provide more consistency; changing the eligibility criteria for tribunal judges so as to attract applications from a wider range of people; and ensuring that awards made by tribunals are more easily enforced through the court system. The overriding aim, according to the Lord Chancellor, is to ‘reinforce the independence of tribunals from the departments whose decisions they review’. He said this will ‘boost public confidence in [tribunals] and the decisions that they take’.


Within these proposals, the DCA envisages a two-tier structure of tribunals – a layer of ‘first-tier’ tribunals and then ‘upper’ tribunals, to which appeals would be made, presided over by a senior president who is expected to be a judge from the Court of Appeal. As part of this structure, existing tribunals would be divided into ‘chambers’, either individually or with other tribunals covering similar or related issues. Each chamber would have its own president and procedural rules committee, and judges would operate across tribunals in each chamber. The chambers would have a reasonable degree of flexibility over their own procedural rules, subject to an overriding objective that rules should be ‘accessible and fair, simple and clearly expressed and that proceedings are handled quickly and effectively’.


The legislation would allow some tribunals to award costs in a similar way to courts, and would allow legal aid funding to be made available for some appeals to the upper tribunal. The upper tribunal would also be given the power to hear judicial review applications, with the intention of relieving the pressure on the High Court.


The Bill also reduces the qualifying periods for tribunal judges from ten years’ to seven years’ post-qualification legal experience, and from seven to five years’ for other tribunal members. The requirement for prospective judges to have earned rights of audience before being considered has been dropped. Perhaps more controversially, while the proposals state that tribunal judges must be solicitors or barristers, they also contain the caveat that eligibility can also be extended to anyone whom the Lord Chancellor deems to have sufficient legal experience, potentially bringing the likes of legal executives into the frame.


So far, the plans seem to be receiving a cautious welcome from the profession and individual lawyers working within the system, although a common criticism is that many of the proposals are too vague for their effect in practice to be fully appraised. The Law Society’s reply to the DCA consultation, published in September, was broadly positive.


‘Moving to a unified tribunal system under the supervision of the Lord Chancellor should serve to significantly raise the status of tribunals, not just in terms of funding but also in profile,’ it said. ‘The creation of a single structure will also provide greater clarity and simplicity for users and advisers.’


However, the Law Society expressed several concerns. One key worry is that the process of unifying the rules and procedures of different tribunals should not be driven through too quickly or for its own sake, in recognition of the diverse activities and requirements of individual tribunals.


Unsurprisingly, the Law Society also had a few comments about the proposed powers of the Lord Chancellor to decide on the eligibility of prospective judges. While it supports the reduction in the qualifying period and the removal of the rights of audience requirement, the Lord Chancellor‘s proposed powers to appoint others to the tribunal judiciary seem to be a step too far.


The Law Society insists that there should be set criteria for appointments, to provide ‘clarity’, and to avoid the perception that standards are lower than for the rest of the judiciary, although the submission agrees that in specialist fields such as immigration and asylum or mental health, other experts may be qualified. ‘Measures taken to improve diversity must not be allowed to be synonymous with a lowering of quality,’ it says. ‘A clear removal of the rights of audience link and a lowering of the qualification requirement will open up the appointments process to a wider and more diverse pool of potential applicants without lowering standards or undermining public confidence in the judiciary, obviating the need to widen the eligibility criteria any further.’


The London Solicitors Litigation Association supports this view, says its president Simon Davis, a partner at Clifford Chance. ‘The composition of tribunals must be motivated by merit, not politics,’ he says. ‘The government has gone out of its way to stress that this will be case. This is reassuring, but the proof of the pudding will be in the eating.’



However, it seems likely that the DCA might choose politely to ignore the Law Society’s stance on limiting appointments to solicitors and barristers, at least when it comes to considering legal executives for judicial posts. ‘The Lord Chancellor gave us a very strong commitment to increase judicial diversity and he feels that legal executives bring something different to the table,’ says Ian Watson, head of professional development and regulation at the Institute of Legal Executives. ‘The appointments need to be made on merit. Some of the our members will have the skills and experience and some will not.’


There are inevitably not only concerns about what has been put into the Bill, but also what has been left out. For employment lawyers, it still leaves considerable uncertainty as to whether larger claims for breach of employment contract (more than £25,000) should be brought to a tribunal first or go straight to court.


‘The £25,000 limit on tribunal cases is completely arbitrary,’ says Richard Fox, chairman of the Employment Lawyers Association’s tribunals monitoring working party and a partner at London firm Kingsley Napley. ‘At present, if you go to a tribunal [and fail], and then later go to court, you can find yourself in trouble [with the court likely to strike out the case because it has already been heard]. This needs to be sorted out.’


The major concern of the Law Society here is the lack of provision for legal aid funding for first-tier tribunal hearings, which it suggests should be available in complex cases. ‘The complexity of law and scale of case law [in some tribunals] means that applicants who are unrepresented will be seriously disadvantaged,’ says Chancery Lane. ‘Representation would also save the tribunal time and filter out “unmeritorious claims”.’


There is a little more hope among practitioners that appeals to the upper tribunal may have more success in gaining funding. ‘It has been indicated to us that the appellant tribunal would only hear test cases, and it would appear that they are narrowing the scope to overturn decisions,’ says Desmond Rutledge, chairman of the Social Security Law Practitioners Association and a barrister at Two Garden Court Chambers in London. ‘If the criteria change so that they only consider test cases, then it would at least be a strong argument for funding appeals.’


The government’s reforms should add greater cohesion to the current disparate system. But uniformity should not come at the expense of the specialist expertise contained in the individual tribunals – and that of the lawyers who come before them.


Derek Bedlow is a freelance journalist