Acting judiciallyTimes 7 May
3.138The tribunal must act judicially. This has two aspects.
3.139First, acting judicially refers to the personal manner and behaviour of the members of the tribunal and their interpersonal skills. In this sense, it refers to matters that do not affect the outcome of the proceedings. If the tribunal as a whole or any of its members is deficient in this respect, the appropriate recourse is by way of complaint.
3.140Second, acting judicially refers to the manner in, and basis on, which the tribunal makes its decision. If the tribunal is deficient in this respect, the appropriate recourse is by way of appeal or judicial review.
3.141These two aspects may overlap. For example: a racist comment is the proper subject of a complaint and may show that one of the parties did not have a fair hearing.
3.142In
Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson,
1[1892] 1 QB 431. Fry LJ said that acting judicially required that the proceedings were:
… conducted with the fairness and impartiality which characterize proceedings in Courts of justice, and are proper to the function of a judge.
2[1892] 1 QB 431 at 447, cited with approval by Lord Dilhorne in Attorney-General v BBC [1981] AC 303 at 340.3.143Other judges have spelt out what this involves. The essence of this requirement is that the tribunal must act in accordance with the principles of natural justice
3Lord Parker CJ in R v The Medical Appeal Tribunal (Midland Region) ex p Carrarini [1966] 1 WLR 883 at 887. and the Convention rights of the parties, especially article 6. Lord Diplock treated the duty of a tribunal to act rationally on material of probative value as part of the requirements of natural justice.
4Mahon v Air New Zealand Ltd [1984] AC 808 at 820–821.3.144In
R (Starling) v Child Support Commissioners,
5[2008] EWHC 1319 (Admin). Collins J held that a tribunal exercising a child support jurisdiction was entitled to raise an issue on its own initiative, despite the fact that it had not been considered by the decision-maker or raised by any of the parties to the appeal, provided that the tribunal dealt with the issue fairly. He described something of what fairness required:
I should add this in dealing with the question of fairness. Where a tribunal raises an issue of its own motion such as this it is obviously important that the appellant is not put at a disadvantage and that the chairman of the tribunal does not take on the mantle of a party and descend into the arena. Of course he is entitled to test the evidence given by the appellant, to raise issues which he considers to be important and to point perhaps in the direction against the approach adopted by the appellant. But he must take care not to appear to be acting in a way which suggests that he has taken over the role of a party rather than staying in his role as chairman.
6[2008] EWHC 1319 (Admin) at [43].3.145A tribunal must not act capriciously or arbitrarily.
7Farwell J in Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 at 39. It must act according to law,
8R(U) 7/81 at [8]. although without stifling judicial creativity.
9Lord Judge CJ in a talk on Judicial Independence and Responsibilities given to the 16th Commonwealth Law Conference at Hong Kong on April 9, 2009. Judges must respect their oath and may not opt out of hearings if they disapprove of the law.
10McClintock v Department of Constitutional Affairs [2008] IRLR 29. The tribunal must act with scrupulous fairness.
11Henriques J in R (M) v Inner London Crown Court [2003] 1 FLR 994 at [45]. It must act impartially and independently.
12Stanley Burton J in Berg v IML London Ltd [2002] 1 WLR 3271 at [13]. And the members must give their undivided attention to the hearing.
13R v Marylebone Magistrates Court ex p Joseph (1993) Times 7 May. Such comments are no more than examples of the need for proceedings to be fair.
3.146A judge should only communicate with parties or their representatives in identical terms and in a form that produces a record of the exchanges.
14Constantinou v Wilmot-Josife [2010] 2 FLR 1449 at [17]. 3.147A tribunal must exercise a discretion with due regard to the purpose for which it was conferred.
15Lord Bingham in South Bucks District Council v Porter [2003] 2 AC 558 at [29]. A discretion must also be exercised according to common sense and justice.
16Bowen LJ in Gardner v Jay (1885) 29 ChD 50 at 58. And must not be exercised ‘subjectively or at whim or by rigid rule of thumb, but in a principled manner in accordance with reason and justice’.
17United Arab Emirates v Abdeighafar [1995] ICR 65 at 70.3.148The exercise of a judicial power or duty cannot be delegated,
18Barnard v National Dock Labour Board [1953] 2 QB 18; Lord Parker CJ in R v Governor of Brixton Prison ex p Enahoro [1963] 2 QB 455 at 465–466. without statutory authority. For circumstances in which delegation is authorised under TCEA, see chapter 7.