Judicial nature of a tribunal
Judicial
1.98This word is ambiguous, as pointed out by Lopes LJ in
Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson:
1[1892] 1 QB 431.The word ‘judicial’ has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind – that is, a mind to determine what is fair and just in respect of the matters under consideration.
2[1892] 1 QB 431 at 452.This section is concerned with ‘judicial’ in the former sense.
1.99Judicial independence is a constitutional principle that derives from the wider principles of the rule of law and the separation of powers. As an instance of the rule of law, it means that the judiciary make their decisions independent from any influence or control. As an instance of the separation of powers, it focuses on freedom from influence or control by the State. Such influence or control might be systemic and directed at the legal system generally or individual and directed at a particular judge.
1.100The importance of judicial independence in a modern democracy has been given international recognition.
3By the United Nations in the Basic Principles on the Independence of the Judiciary; by the Council of Europe in article 6(1) of the European Convention on Human Rights and Fundamental Freedoms; by the Commonwealth Parliamentary Association in the Commonwealth (Latimer House) Principles on the Three Branches of Government (agreed in 1998 and approved in 2003). At a national level, section 3 of the Constitutional Reform Act 2005 contains a statutory guarantee of continued independence for the judiciary. Section 3(5) and (6) contains specific duties in furtherance of that independence:
3(5) The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary.
(6)The Lord Chancellor must have regard to–
(a)the need to defend that independence;
(b)the need for the judiciary to have the support necessary to enable them to exercise their functions;
(c)the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters.
The duties in subsection (6) are reflected in the Lord Chancellor’s oath under section 6A of the Promissory Oaths Act 1868, inserted by section 17 of the 2005 Act.
1.101There is a limited, but not exhaustive, definition of ‘judiciary’ in the 2005 Act. TCEA s1 extends that statutory definition, and paragraph 66 of Schedule 8 amends the 2005 Act to include members appointed to the Upper Tribunal and First-tier Tribunal. The amendment does not include transferred-in judges. This omission may not matter, as all tribunal judiciary may come within the general meaning of judiciary.
1.102Of more significance to the parties before a tribunal is article 6, which provides that the tribunal must be independent. This may be enforced under the Human Rights Act 1998 by a party to proceedings who alleges a violation of the Convention right. If the State is a party to the proceedings, the other party is also protected by the requirement, also embodied in article 6, that the tribunal must be impartial between the parties.
1.103The appointments system could allow the State to influence judges through selection and promotion. This was largely removed from political control by the creation of the Judicial Appointments Commission under the 2005 Act. This protection does not operate within the tribunal system under TCEA. The initial appointment to a tribunal is made by the Commission, but allocation to particular chambers or to jurisdictions or areas of work within chambers is not handled by the Commission. Instead, it is dealt with by assignment, ticketing and judicial assistance.
1.104Pressure can be put on the judiciary through their salaries. It has been recommended that there should be specific legal provision to ensure that judicial salaries increase at least by the cost of living
4The Consultative Council of European Judges in Opinion No 1 (2001) on standards concerning the independence of the judiciary and irremovability of judges, at para 62. and that judicial salaries and benefits should be set by an independent body and their value maintained.
5The Commonwealth Parliamentary Association in the Commonwealth (Latimer House) Principles on the Three Branches of Government, p18. Parliament has not gone so far. It has provided a statutory guarantee not to reduce salaries of court judiciary by amendment under Schedule 3 to the 2005 Act. This provides no protection against pay freezes or erosion by inflation. It has not been extended to tribunal judiciary, although clause 20 of the draft Constitutional Renewal Bill contained a provision that would have remedied this. The Senior Salaries Review Body makes annual recommendations on judicial salaries, but the Government need not accept them.
1.105The relationship between a tribunal and its sponsoring Department can create the appearance that the tribunal is not independent. And if the sponsoring Department has the power to make rules of procedure for the tribunal, it may create rules that favour the Department. TCEA deals with both. Section 35 allows the Lord Chancellor to assume, solely or jointly, responsibility for a tribunal. It also prevents any exercise of this power being revoked. Section 36 gives the Lord Chancellor control over the power to make rules of procedure. This may be transferred to the Lord Chancellor or to the Tribunal Procedure Committee. This section only applies to scheduled tribunals, which do not include employment tribunals.
1.106TCEA creates one potential interference with individual judicial independence. Section 23(1) gives the Senior President power to issue practice directions and section 23(6) envisages that they may include guidance on the application or interpretation of the law. This will have to be reconciled with the independence of the tribunal judiciary and the tribunal’s duty to interpret and apply the law.
Is a tribunal judicial?
1.107This question can only be answered in a particular context, because the question only arises in a particular context. The enquiry is related to the questions of what a tribunal is and what distinguishes it from a court.
1.108The question has arisen in a number of contexts. The following analysis is based on those contexts. It sets out the general tests that have been applied by the courts and the different factors that the courts have considered in applying those tests. The significance of each of those factors can only be determined in the context of the other factors in the case and of the general test that the court applied. The factors and their inter-relation can be analysed, but ultimately, the decision in each case is, as Lord Edmund-Davies said in
Attorney-General v BBC,
6[1981] AC 303. ‘largely a matter of impression’.
7[1981] AC 303 at 351.Do statements made by a tribunal attract absolute privilege in defamation?
1.109This issue arose in
Copartnership Farms v Harvey-Smith.
8[1918] 2 KB 405. The court had to decide whether comments made by a member of a Military Local Tribunal were protected by absolute privilege for the purposes of an action in defamation. The function of the tribunal was to consider exemptions from military service. Sankey J held that the statements were protected. He described the issue as ‘whether the tribunal on the occasion is a tribunal which acts in a manner similar to that in which Courts of justice act.’
9[1918] 2 KB 405 at 408. He did not consider it decisive that:
10[1918] 2 KB 405 at 409–414.a)the members were appointed by a non-judicial authority;
b)the tribunal could not administer an oath, especially as its decisions affected a party’s status and penalties attached to false statements made to the tribunal;
c)the tribunal had power to hear all or part of a case in private;
d)only those members present throughout the proceedings were entitled to vote;
e)the chairman had a casting vote; and
f)a Government Department could intervene in the proceedings.
The judge concluded that the legislation had provided ‘the tribunal with certain powers which possibly Courts of justice have not.’
11[1918] 2 KB 405 at 414.1.110The issue was the same in
Addis v Crocker,
12[1961] 1 QB 11. which concerned a Disciplinary Committee under the Solicitors Act 1957. The Court of Appeal held that statements made were protected by absolute privilege. It was not decisive that:
13[1961] 1 QB 11 at 23–28. (a) the hearings were held in private, with only the findings and decision announced publicly; and (b) that there might also be a criminal liability.
1.111Both courts took account of the fact that the decisions of the tribunals affected the status of one of the parties.
1.112In
Collins v Henry Whiteway and Co Ltd14[1927] 2 KB 378. Horridge J refused to extend this privilege to the Court of Referees under the Unemployment Insurance Act 1920. This body decided issues on referral by an insurance officer. If the officer did not agree with the Court’s recommendation, the issue could be referred to an umpire. The judge said:
It is not a body deciding between the parties, nor does its decision affect criminally or otherwise the status of an individual …
The Court of Referees is merely discharging administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind.
15[1927] 2 KB 378 at 383.Does the tribunal exercise the judicial power of the state?
1.113This issue is particularly relevant in those jurisdictions that apply a strict separation of powers between the legislature, the executive and the judiciary.
1.114In
Shell Company of Australia v Federal Commissioner of Taxation,
16[1931] AC 275. the Privy Council had to decide whether an Australian Board of Review for income tax purposes was exercising the judicial power of the State. This issue determined whether its members had to be appointed for life. The Council decided that the Board was not exercising judicial power. It adopted a definition of ‘judicial power’ given by Griffith CJ:
… the words ‘judicial power’ as used in s71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
17[1931] AC 275 at 295–296.The Council then listed five factors which were not sufficient to show that a tribunal was a court:
18[1931] AC 275 at 297. (a) the tribunal gives a final decision; (b) it hears witnesses on oath; (c) two or more contending parties appear before it; (d) it gives decisions that affect the rights of subjects; and (e) matters are referred to it by another body.
1.115The minority of the Privy Council in
United Engineering Workers’ Union v Devanayagam19[1968] AC 356. analysed the position of a president of a Ceylonese Labour Tribunal in terms of judicial power. The issue was whether a president of a Labour Tribunal was a judicial officer. This depended on whether the president’s chief function was to exercise the judicial power of the State.
20[1968] AC 356 at 380. The status of the president determined whether appointments were made by the Judicial Service Commission or the Public Service Commission. The minority decided that the president was a judicial officer. They emphasised these features:
21[1968] AC 356 at 382–388.(a)the Tribunal could only act when there was a controversy;
(b)it gave a binding and authoritative decision;
(c)its powers came from the State, not the parties;
(d)it acted in conformity with principle;
(e)which was reinforced by a right of appeal on questions of law;
(f)the Tribunal would establish a set of principles that would develop from its discretionary power to make orders that were just and equitable; and
(g)it dealt with existing rights, rather than conferring new rights for the future.
In contrast the majority commented that:
The holder of a judicial office exercises judicial power, but the fact that some judicial power is exercised does not establish that the office is judicial.
22[1968] AC 356 at 368.Does the member hold judicial office?
1.116In
United Engineering Workers’ Union v Devanayagam,
23[1968] AC 356. the majority decided that the president of a Labour Tribunal was not a judicial officer. They defined the test as being whether the issues that the Tribunal had to decide made it desirable for the presidents to have the same qualifications as those in other courts. The majority based its decision on a combination of factors. Two that seem to have been particularly significant were that: (a) the tribunal was not limited to determining legal rights; and (b) it was empowered to make any decision that was just and equitable. The fact that there was a right of appeal to a court on questions of law was not decisive.
24[1968] AC 356 at 376.1.117In a pair of cases, the Privy Council considered the same issue in respect of a Ceylonese commissioner and the members of the Board of Review for the purposes of imposing a penalty for late disclosure of income tax. It decided that they were not judicial officers. In
Ranaweera v Wickramasinghe,
25[1970] AC 951. in respect of a commissioner, the Council set out this test:
… where the resolution of disputes by some executive officer can be properly regarded as being part of the execution of some wider administrative function entrusted to him, then he should be regarded as still acting in an administrative capacity, and not as performing some different and judicial function.
26[1970] AC 951 at 959.In
Ranaweera v Ramachandran,
27[1970] AC 962. it decided that the same was true of the Board of Review, although Lord Diplock dissented.
Does the tribunal have power to enforce its decisions?
1.118This is not essential in order for a tribunal to be a court.
28R (H) v Secretary of State for the Home Department [2004] 2 AC 253 at [26].Does the law of contempt apply to proceedings?
1.119
Attorney-General v BBC29[1981] AC 303. illustrates the variety of ways in which the status of a body can be analysed and the impossibility of isolating the court’s analysis of the judicial character of a tribunal from the context of the particular issue. The issue for the House of Lords was whether a local valuation court was an inferior tribunal for the purposes of contempt. Viscount Dilhorne decided that the local valuation court was a court, but one that discharged administrative functions.
30[1970] AC 951 at 338 and 339–340. Lord Salmon decided that the local valuation court was not a type of body that needed the protection of the law of contempt.
31[1970] AC 951 at 344. Lord Edmund-Davies made a detailed analysis of the various factors suggested as determinative, finding that some were against the local valuation court being an inferior court: (a) the fact that it was not bound by the rules of evidence; (b) it had no power to summon the attendance of witnesses or to order the production or inspection of documents; and (c) the members could rely on their own knowledge. But, in the end, he admitted that the test was largely one of impression.
32[1970] AC 951 at 347–351. Lord Fraser decided that the court had administrative functions, while emphasising the importance of convenience, certainty and freedom of expression in defining the scope of contempt.
33[1970] AC 951 at 353. Lord Scarman concentrated on the purpose of the court, which was essentially administrative, and decided that it was not appropriate to extend the protection of contempt to such a body.
34[1970] AC 951 at 359–362.1.120In
Peach Grey & Co v Sommers,
35[1995] ICR 549. the issue was whether the Divisional Court of Queen’s Bench had jurisdiction to punish for contempt in proceedings before an industrial tribunal.
36Now an employment tribunal. This depended on whether the tribunal was an inferior court. The Court decided that it was. Rose LJ set out factors that were not decisive:
37[1995] ICR 549 at 557.a)the tribunal was not a court of record;
b)its awards were enforced in the county court and its costs were taxed there;
c)it was not bound to observe the strict rules of evidence, although it did so in practice;
d)conciliation proceedings were available; and
e)the rights of audience were not limited to lawyers.
He then set out factors suggestive that the tribunal was a court:
38[1995] ICR 549 at 557.f)(it was established by Parliament;
g)it had a legally qualified chairman appointed by the Lord Chancellor and panel members appointed by the Secretary of State for Employment;
h)it sat in public;
i)it decided cases that affected the rights of subjects;
j)it had power to compel witnesses to attend, to administer the oath, strike out pleadings, allow amendments and order discovery;
k)the parties could be legally represented;
l)it had rules of procedure for giving evidence and making submissions;
m)it could award costs;
n)it had a duty to give reasons for decision;
o)an appeal on law lay to the Employment Appeal Tribunal and then to the Court of Appeal.
1.121In
Pickering v Liverpool Daily Post and Echo Newspapers plc,
39[1991] 2 AC 370. the House of Lords decided that the law of contempt applied to a mental health review tribunal. Lord Bridge gave two reasons.
40[1991] 2 AC 370 at 417. The first was that the tribunal was expressly mentioned in section 12(1)(b) of the Administration of Justice Act 1960, which dealt with contempt. The other was that the tribunal exercised the power of the State. The latter point relied on the reasoning of Lord Donaldson MR, which noted that since 1983 the tribunal no longer made recommendations that could be accepted or rejected but decisions that were binding as to the patient’s liberty.
41[1991] 2 AC 370 at 380–381.1.122Peter Gibson LJ in
Bache v Essex County Council42[2000] 2 All ER 847. accepted that a representative’s conduct could in an extreme case amount to contempt before an employment tribunal.
43[2000] 2 All ER 847 at 853.Does the law of perjury apply to proceedings?
1.123Perjury can be committed by swearing falsely before a tribunal. In
R v Tomlinson,
44(1866) LR 1 CCR 49. the Court of Crown Cases Reserved held that perjury could be committed by giving false evidence to a local marine board. Cockburn CJ explained why:
The inquiry was before a tribunal invested with judicial powers, and enabled to inquire on oath, and pass a sentence affecting the status of the person accused. It would be highly inconvenient if false swearing upon such an inquiry did not amount to perjury. It would be fatal to the person accused, if he were not to have protection against witnesses who came to swear falsely.
45(1866) LR 1 CCR 49 at 53–54.Is the tribunal administrative rather than judicial?
1.124A tribunal that applies policy as well as law is administrative
46Lord Simonds in Labour Relations Board of Saskatchewan v John East Ironworks [1949] AC 134 at 149. rather than judicial. As is a tribunal that allows members to vote despite not being present throughout the whole of the proceedings.
47Sankey J in Copartnership Farms v Harvey-Smith [1918] 2 KB 405 at 413.Is the tribunal quasi-judicial?
1.125According to Lords Guest and Devlin in
United Engineering Workers’ Union v Devanayagam,
48[1968] AC 356. a person who is not a judicial officer but who has to exercise judicial power of the State is acting quasi-judicially.
49[1968] AC 356 at 380.Administrative and judicial decision-making
1.126The courts have distinguished between judicial and administrative decision-making. In
Karanakaran v Secretary of State for the Home Department,
50[2000] 3 All ER 449. the Court of Appeal drew this distinction in deciding that a decision-maker dealing with an asylum claim was not constrained by the rules of evidence.
Superior court of record
1.127TCEA s3(5) provides that the Upper Tribunal is a superior court of record. And section 25 confers on the Upper Tribunal the same powers, rights, privileges and authority as the High Court in relation to the attendance and examination of witnesses, the production and inspection of documents, and all other matters incidental to the Upper Tribunal’s functions. Equivalent provision is made for the Employment Appeal Tribunal by sections 20(3) and 29(2) of the Employment Tribunals Act 1996.
1.128A superior court of record has three characteristics.
51R (Cart) v Upper Tribunal [2010] 1 All ER 908 at [75]. First, it is presumed to act within its powers unless the contrary is shown. In practice, this is unlikely to be of significance, as the Upper Tribunal’s jurisdiction is entirely statutory. Second, its decisions have effect as precedents for lower tribunals. Third, it has power to punish for contempt.
52See also CB v Suffolk County Council [2010] UKUT 413 (AAC) at [22].1.129The Upper Tribunal has decided that it has power to punish for contempt in Scotland, although there is no Scottish concept equivalent to a superior court of record.
53MR v CMEC and DM [2009] UKUT 283 (AAC) at [14]–[15].1.130The Upper Tribunal has disciplinary power over solicitors,
54The Upper Tribunal discussed when it might be appropriate to refer a solicitor to the Solicitors Regulatory Authority in Okondu and Abdussalam v Secretary of State for the Home Department [2014] UKUT 0377 (IAC) at [50]. but not over non-legal representatives.
55B v Home Office [2012] 4 All ER 276 at [146]–[147].