⇒ Judicial review is excellent in respect of a finite number of areas where the courts feel confident to intervene:
⇒ But the courts are reluctant - and perhaps for good reasons - to intervene in some decision making:
⇒ As an addition to judicial review, not a replacement for it, administrative tribunals have become commonplace in English administrative law since around the first half of the twentieth century.
⇒ But this does not mean that tribunals solve the problems or limitations of judicial review just identified.
⇒ Tribunals are statutory bodies of administrative redress, where decisions of other public bodies can be ‘appealed’ (not reviewed), including on the merits of the decision.
⇒ But the powers of tribunals will be only those powers conferred to it by statute. If a tribunal exceeds its statutory powers, like any other public body its decision may be quashed by the Administrative Court in judicial review
⇒ Although formally the same as other types of public body, tribunals are in other respects different.
⇒ There were two major legal changes to the law on tribunals.
⇒ Sir Oliver Franks chaired a committee examining the state of administrative law following the ‘Crichel Down Affair.’
⇒ On tribunals, Franks was keen to regularise and formalise the workings of tribunals, identifying the need for openness, fairness, and impartiality. He wanted to make them more like courts.
⇒ He proposed a Council on Tribunals, to be presided over by a President, to help secure the regularisation of tribunals.
⇒ But the Franks report was mainly aspirational, and the subsequent Act was of limited effect (compared with the 2007 Act).
⇒ The Franks Report dominated thinking on tribunals for the next few decades. Perhaps its effects were seen over time (in practice). But a new legislative regime was sought in 2001, when the Government commissioned a new report from Sir Andrew Leggatt.
⇒ Taking what Frank had aspired for, but perhaps being a little more concrete as to what legal change would be needed, Leggatt proposed that most important tribunals should be placed under a single tribunals structure (National Tribunals Service) and sponsored by the Ministry of Justice.
⇒ In order to achieve consistency amongst the tribunals, procedural matters would be decided centrally, with a desire to provide for a more formal hearing.
⇒ Individual tribunals would become part of a single ‘First Tier Tribunal’ structure, with an ‘Upper Tribunal’ providing an appellate jurisdiction.
⇒ Perhaps because of this, or perhaps for other reasons (austerity?), the use of tribunals has grown massively in the last few years.
⇒ If we compare these figures with judicial review, the picture is striking.
⇒ The Administrative Court hears around 11,200 cases per year, but many of these are statutory rights to review akin to common law judicial review.
⇒ Tribunals are cheap — sometimes free.
⇒ Tribunals are relatively informal (less so under the 2007 Act), and so claimants often represent themselves.
⇒ Also, tribunals are not simply aiming at questions of jurisdictional excess or procedural fairness: there will often be many different grounds for an appeal to a tribunal - including on the merits of a decision.
⇒ The tribunals system is the workhorse of administrative law - at least in terms of access and the number of cases
⇒ The 2007 Act provides for two tiers of tribunal (‘First Tier’ and ‘Upper’ Tribunals)
⇒ By Section 9, the First Tier Tribunal may review its own decisions on its own initiative
⇒ Section 11 provides for a right of appeal from the First Tier Tribunal to the Upper Tribunal on a point of law
⇒ An appeal lies from a decision of the Upper Tribunal to the Court of Appeal on a point of law (Section 13), except where the decision of the Upper Tribunal is an ‘excluded decision’ (a decision where no appeal lies to the Court of Appeal)
⇒ The Upper Tribunals (which hears appeals from the First-Tier Tribunal) refused two claimants permission to appeal to it. The claimants sought judicial review of this refusal
⇒ The Administrative Court, the Court of Appeal, and the Supreme Court all rejected the claim in judicial review - but for different reasons…
⇒ The Administrative Court ruled that decisions of the Upper Tribunal were not amenable to judicial review at all, because the Upper Tribunal was an alter ego of the High Court
⇒ The Court of Appeal thought otherwise: they said that the Upper tribunal not alter ego of the High Court and so could in principle be subject to judicial review. However, it was within the lawful discretion of the Upper Tribunal to refuse permission to appeal
⇒ The Supreme Court took a different approach: the Upper Tribunal's decisions may be judicially reviewed, but only if the review poses an important point of principle or practice, or that there is some other compelling reason to hear the case in judicial review
⇒ Because the Upper Tribunal refused permission to hear an appeal to it, it cannot (by statute) be a decision that can be appealed to the Court of Appeal (i.e. an ‘excluded decision’)
⇒ Therefore, Mr Cart sought to judicial review of this refusal, which went initially to the High Court, then to the Court of Appeal, and finally to the Supreme Court
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⇒ The decision (of the Supreme Court) was to provide for the judicial review of the Upper Tribunal’s decision to refuse permission to appeal to it (or any of its decision-making), but not on the usual bases for judicial review: for judicial review to take place by the High Court, there must be an important point of principle or practice raised, or there must be some other compelling reason for the judicial review
⇒ However, the requirement of an important point of principle or practice, or other compelling reason, might make judicial review impossible in practice
⇒ Throughout Lady Hale’s speech, the reason for this approach is undoubtedly linked to Parliament’s intention in enacting the 2007 Act
⇒ Perhaps this position of the Upper Tribunal (unique in the administrative field) is legitimised by the Act itself
⇒ But Section 18 imposes a condition upon the exercise of the Upper Tribunal’s judicial review powers
⇒ A further condition on the UT’s ability to conduct judicial review is provided by s.18(6): the Lord Chief Justice must make an order prescribing the applications which might be heard by the Upper Tribunals for judicial review
⇒ What is evident in the 2007 Act and the decision in Cart is that tribunals are becoming a lot like courts.
⇒ It is notable that tribunals are hearing an increasingly high number of cases
⇒ The Government is also making tribunals more ‘streamlined’ by looking at changes that can be made to procedure, grounds, and so forth
⇒ Around 90 countries have ombudsmen
⇒ An ombudsman is empowered to investigate complaints. Usually this is in respect of the State and its agencies, but private sector ombudsmen also exists
⇒ But the main administrative (that is, public law) ombudsman in the UK is the Parliamentary and Health Service Ombudsman—an office created by the Parliamentary Commissioner Act 1967
⇒ The parliamentary link is important in understanding the role of the PO. Following the ‘Crichel Down Affair,’ there was a concerted effort to improve the quality and fairness of public administration. The following 50 years saw:
⇒ Rather than focussing on claimant rights, jurisdiction, and due process (the court’s interest), or merits review through an appellate process (the tribunal’s interest), the PO is more broadly interested in maladministration in public life and governance.
⇒ This is reflected in the Act establishing the powers of the PO
⇒ Whilst the grounds for an investigation are broad, there are important exceptions to the PO’s general power to investigate
⇒ The MP ‘filter’ will also limit some cases - what if your MP decides not to refer the matter?
⇒ In carrying out an investigation, the PO has broad and inquisitorial powers
⇒ The PO can publish a non-legally binding report, which may make recommendations as to how to remedy the injustice suffered from the maladministration (including a recommendation of compensation)
⇒ Under s.10 (3) the PO has discretion to publish the report to the public, by laying a report before both Houses of Parliament where she thinks that:
⇒ We see the PO is seen to act in the political sphere (publicity), not a legal one.
⇒ The leading case (in terms of the ratio) is R v Parliamentary Commissioner for Administration, ex parte Balchin (No.2) (2000) 79 P&CR 157
⇒ The petitioners complained that the Secretary of State for Transport was guilty of maladministration in confirming Road Orders without seeking an assurance from Norfolk County Council that the Balchins would be given adequate compensation for the effect of the road on their home. They now challenged the Ombudsman’s report, which had rejected their complaint, in judicial review proceedings
⇒ The judicial review was successful: in 1996 the decision of the PO not to investigate was quashed. In 1997, the PO reported on the matter once more, but again decided not to investigate. In 1999, the High Court quashed that decision. In 2000, the PO again reported on the matter, but again decided not to investigate. The High Court, in 2002, quashed that decision (for the third time!)
⇒ In Balchin (No 2), Dyson J was concerned that the PO made his findings without giving adequate reasons.
⇒ So Balchin advances two key legal points:
⇒ Suppose the PO puts together a good and valid report, and publishes it to Parliament. Is it binding on the relevant Minister or official? We’ve already seen from the Act that it isn’t. But that hasn’t stopped the High Court from enforcing some aspect of the reportage.
⇒ The Government issued guidance on pensions - guidance that was seriously flawed in that it created the impression that certain types of pension product were secure and well-funded, when they were not. The Government also changed ‘minimum funding requirements’ for such pensions, which only exacerbated the financial losses later experienced by the pension product holders.
⇒ The PO investigated the scandal and delivered a most damning report, alleging maladministration on the part of the Government occasioning serious injustice and considerable financial losses (losses have since been assessed in the £billions, not £millions).
⇒ The Minister rejected the report’s findings in its entirety.
⇒ In judicial review proceedings, the High Court confirmed that it could not enforce the recommendations of the report, since they were not legally binding.
⇒ Thus, the Court of Appeal held that the misleading information the Government published on the security of the pension products amounted to maladministration occasioning injustice, and that the Minister’s rejection of such a finding was irrational
⇒ In other words, the Minister:
⇒ The outcome respects the important role of the PO in providing administrative redress, but affirms the idea that the PO’s functions operate within a political sphere, not a legal one.
⇒ Our brief exploration into forms of administrative redress other than judicial review illustrates the desirability to have a ‘mixed’ administrative law system.
⇒ Judicial review has its limitations → tribunals offer cheap, informal, expert panels for hearing appeals of the substantive decision-making. The PO supports the workings of Parliament by bolstering the political processes of accountability.
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