1.2Tribunals are exclusively judicial bodies that operate in a way which distinguishes them from other courts. As a word, tribunal has a long history, but only as a synonym for a court. It is still used in that sense, for example in Article 6 of the European Convention on Human Rights (ECHR). However, tribunal as a distinct form of judicial body and as a word to convey that concept is a twentieth century innovation. The oldest citation of the modern use of the word in the Oxford English Dictionary, 2nd edn, 1989, is from the Military Service Act 1916.

1.3There have long been bodies that were similar in many ways to what we now call a tribunal; their use proliferated in the nineteenth century.1Their history is traced by Chantal Stebbings in Legal Foundations of Tribunals in Nineteenth Century England, Cambridge, 2006. But they were not exclusively judicial, as this role was secondary to their administrative functions. They went by a variety of names, often Commission or Commissioner. They may still not be extinct. The housing benefit review boards were too closely linked, both in structure2R (Bewry) v Norwich City Council [2002] HRLR 2, a decision of the Administrative Court, and Tsfayo v United Kingdom (application no: 60860/00) November 14, 2006, ECtHR. and practice, to their local authorities to be independent judicial bodies, but were only replaced by an appeal to a judicial tribunal in 2001.

1.4Tribunals emerged as exclusively judicial bodies in the twentieth century with the local pension committee under the Old Age Pensions Act 1908 and the umpire under the National Insurance Act 1911. Since then there has been increasing recognition of their judicial status, that status has been enhanced, and tribunals have developed their own distinctive identity. Their development and the attitude of successive Governments to them can be traced in the reports of the three general public enquiries that have considered tribunals.3There have been numerous committees with more limited terms of reference.

1.5The first inquiry was by the Donoughmore Committee, which reported in 1932.4The Report of the Committee on Ministers’ Powers Cmd. 4060 (1932). It was set up in part to consider the safeguards that were required on judicial and quasi-judicial decisions in order to secure the constitutional principle of the supremacy of the law. The committee considered tribunals in this context, distinguishing between tribunals that were independent of Ministerial influence, which it called Specialised Courts of Law, and those that were not, although it admitted that the difference was one of degree not kind.5The Report of the Committee on Ministers’ Powers Cmd. 4060 (1932), Section III, paras 5–7. The committee recognised the value of tribunals,6The Report of the Committee on Ministers’ Powers Cmd. 4060 (1932), Section III, para 10. but with the focus set by its terms of reference, it was concerned not with the internal working of tribunals but with the circumstances in which they were established and the safeguards on their use. As to the former, the Committee recommended that judicial decisions should be left to the ordinary courts of law. Tribunals should be established only on special grounds and if their advantages over the ordinary courts were beyond question.7The Report of the Committee on Ministers’ Powers Cmd. 4060 (1932), Section III, paras 9 and 10. And when they were used, the Committee recommended that the rules of natural justice be observed and the courts be given power to ensure that they acted only within their powers.8The Report of the Committee on Ministers’ Powers Cmd. 4060 (1932), Section III, para 11. The concerns that led to the Committee being established, its discussion and its recommendations all show a concern, at the level of constitutional theory, about the developing use of tribunals.

1.6A quarter of a century later either these concerns had been allayed or tribunals were accepted as an inevitable feature regardless of them. The focus now turned to their status and the details of their operation rather than their constitutional position. The Franks Committee, which reported in 1957,9The Report of the Committee on Administrative Tribunals and Enquiries Cmnd. 218 (1957). was set up in part to consider the constitution and working of statutory tribunals. This Committee endorsed the value of tribunals but was not concerned to limit their use. Rather the focus was on their judicial nature, the standards they must attain and the supervision they required. It based its recommendations around three principles of openness, fairness and impartiality:

1.8By the end of the century the focus had changed again. The terms of reference to the inquiry led by Sir Andrew Leggatt, which reported in 2001,12Tribunals for Users – One System, One Service. accepted statutory tribunals as judicial bodies and directed attention to issues of efficiency and effectiveness. Leggatt’s key recommendation was that tribunals should be freed from their relationship with a sponsoring department and be brought within a single coherent structure with uniform powers for tribunals and rights of appeal for the parties.

1.9The idea of systematic reform was not new. It had been proposed without success by Professor Robson to the Donoughmore Committee,13The Report of the Committee on Ministers’ Powers Cmd. 4060 (1932), Section III, para 19. picked up by Professor Wade14‘Quasi–Judicial’ and its Background (1949) 10 CLJ 216 at 217. and repeated by Professor Robson to the Franks Committee, which rejected his proposal that would have brought system to appeals against administrative decisions.15The Report of the Committee on Administrative Tribunals and Enquiries Cmnd. 218 (1957) at paras 120–123.

1.10Sir Andrew Leggatt’s report was followed in 2001 by a consultation paper and then, in 2004, by a White Paper on Transforming Public Services: Complaints, Redress and Tribunals.16Cm 6243. This proposed a co-ordinated approach to administrative justice. There followed administrative action and legislation, but the vision of the White Paper has only been partly realised. Administratively, a Tribunals Service was established, as a companion to the Courts Service. Beginning in April 2006, tribunals began to be moved from their sponsoring departments into the Department for Constitutional Affairs, now the Ministry of Justice. And their administrations, although they remained separate, were co-ordinated under the new Tribunals Service. In terms of legislation, the Tribunals, Courts and Enforcement Act (TCEA) was passed in 2007. This established a First-tier Tribunal and an Upper Tribunal and made common provision for the powers of, and appeal rights to and from, those tribunals. Finally, the Council on Tribunals was replaced by the Administrative Justice and Tribunals Council, which was itself abolished in 2013.

1.11In April 2011, the Tribunals Service merged with Her Majesty’s Courts Service to form Her Majesty’s Courts and Tribunals Service. This administrative merger has in turn led to greater judicial integration and assimilation between the courts and tribunals through the Lord Chief Justice’s power of deployment under the Courts and Crime Act 2013 s21.

1.12The current priority is to find ways of reconciling the political aspiration for devolution and the practical problems of operating jurisdictions that apply across national boundaries within the United Kingdom.