LLB Law & Practice

401LEG: Public Law and

Human Rights

Week 3 Session 3
 ALTERNATIVE METHODS OF REDRESS
Learning Intentions
1.Identify the purpose of tribunals as an alternative means of redress

2.Explain how tribunals have developed as an alternative means of redress

3.Explain how the Ombudsmen system has developed as an alternative

means of challenging public body decisions

4.Identify when a Public Inquiry is used with reference to 1 key piece of

legislation

5.Explain how to seek a Public Inquiry and whether there is an obligation to

convene one
 4 Pillars of Redress
COMPLAINT PUBLIC BODY

PILLAR 1
INTERNAL PILLAR 2 PILLAR 3
COMPLAINT Tribunals & Public sector ombudsmen.
public inquiries. These could be seen as
PILLAR 4
These provide These external falling within the second
The courts – Judicial
an informal, mechanisms for pillar, as they offer a non-
Review
efficient and administrative court based form of
inexpensive review are now redress. However, the
This has been studied in
resolution of mostly governed nature and significance of
detail in previous
complaints for both by the the ombudsmen are such
sessions
the Tribunals, Courts that they should be seen as
complainant and and Enforcement a means of redress in their
public body Act 2007. own right.
involved.
 Tribunals – Introduction
Purpose & Powers

• Adjudicate disputes between the citizen and the state

• Provide a full review of the merits of administrative decisions

• Tribunals, in some cases, have the power to award other remedies, such
as compensation.
• Have been criticised as being administered by central government
departments and having wide variations in practice and decision-making.
• The lack of uniformity was highlighted in Sir Andrew Leggatt’s report in
2001, which led to the Tribunals, Courts and Enforcement Act 2007
 Key stages in the Development of Tribunals
Tribunals have been around in various forms for many years, but as they
tended to be created ad hoc their operation lacked uniformity and consistency.

These problems were addressed by two important government reports on

the operation of Tribunals:
The Franks Committee Report 1957
The Leggatt Review of 2001.

Franks Committee Report (1957)

Main criticisms were:
a) tribunals did not give reasons for their decisions;
b) often no routes of appeal.

As result of Report, tribunals were placed on a statutory footing under the Tribunals &
Inquiries Act 1958
 Tribunals and Inquiries Act 1958
Main changes introduced by the Act were:

1)Established Council on Tribunals to supervise the work of most

administrative tribunals;

2)Tribunals would now give reasons for their decisions;

3)Parties could be represented by a lawyer if they wished;

4)All material facts would be disclosed to all parties before the hearing;

5)Hearings would be in public unless national security was involved;

6)Appeals would lie from most tribunals to the Divisional Court of the
Queen’s Bench Division (the High Court).
 The Leggatt Review of Tribunals (2001)
The working of the Tribunal system was reviewed in 2001 and the following
recommendations were made:

1)The establishment of a ‘Tribunal Service’ to bring all administrative

tribunals under one common administrative structure under the control of
one government department.

2)To make tribunal procedures and appeals routes more user-friendly to

encourage complainants to represent themselves.

3)To group administrative tribunals together in a common Tribunal System

headed by a High Court Judge.

4)Case-management and the use of information technology should be

improved to ensure delays in hearing cases are avoided.

5)To improve the training of administrative tribunal chairpersons.

 The Government’s Response to Leggatt

The Government's main response to the Leggatt review was to create a new
statutory basis for most Tribunals. The current legal framework for the work
of Tribunals is now set out in the Tribunals, Courts and Enforcement Act
2007.

The Tribunals, Courts and Enforcement Act 2007

1)Overhauled the UK Tribunal System, creating a new unified structure and

two new tribunals

2)Created new criteria for appointment of Tribunal judges

3)Replaced the Council on Tribunals with an Administrative Justice and

Tribunals Council (although this was itself abolished with effect from 19
August 2013 with no replacement body)
 New Structure of Tribunals
Court of Appeal, Court of Session, Court of Appeal (NI)
Upper Tribunal and First Tier Tribunal Presided over by Senior President: Lord Justice Sullivan
Upper Tribunal Employment Appeals
Tribunal
President:
Administrative Appeals Chamber Tax and Chancery Chamber Immigration and Asylum Chamber Lands Chamber Mr Justice Brian
Langstaff
President: Mr Justice William Charles President: Mr Justice Nicholas Warren President: Mr Justice Bernard McCloskey President: Mr Justice
Keith Lindblom
(First instance jurisdiction: forfeiture cases and (First instance jurisdictions: Financial Services
safeguarding of vulnerable persons. It has also been and Markets and Pensions Regulator.)
allocated some judicial review functions.) Hears appeals from: Taxation Chamber and
Also hear appeals from: PAT (Scotland), from the Charity jurisdictions in the General
PAT (NI) (‘assessment’ appeals only), Regulatory Chamber. It has also been
MHRT (Wales), allocated
SENT (Wales) some judicial review functions.

First Tier Tribunal Employment Tribunal

(England and Wales)
President:
War Pensions and Social Entitlement Health, Education General Regulatory Tax Chamber Immigration and Property Chamber Employment Judge
Armed Forces Chamber and Social Care Chamber President: Asylum Chamber President: Brian Doyle
Compensation President: Chamber President: Judge Colin Bishopp President: Siobhan McGrath
President: Judge John Aitken President: Judge Michael Employment Tribunal
Judge Nicholas Warren Residential property,
Jurisdictions include: (Scotland)
Acting President Clare Jurisdictions: Social HHJ Phillip Sycamore Jurisdictions include: Clements Agricultural lands &
Horrocks Charity (onward Direct and indirect President:
Security and Jurisdictions: Immigration and drainage,
appeals to Tax & taxation, Employment Judge
England and Wales Child Support,* Asylum Land Registration
Mental Health, Chancery), Shona Simon
appeals only MPs Expenses (onward appeals to
Asylum Support,** Special Educational Consumer Credit, Tax Chancery)
Criminal Injuries Needs and Disability, Estate Agents,
Compensation Care Standards,
Transport (Driving
Primary Health Lists Standards Agency
Appeals),
Information Rights,
Claims Management
Services,
Gambling,
* Except NHS charges in Immigration Services,
Scotland Local Government
** Standards,
No onward
right of appeal Environment

Key: United Kingdom Great Britain England and Wales England only Scotland only
 The Tribunals, Courts and Enforcement Act 2007
First Tier Tribunal

Fact-finding tribunal which hears appeals directly from decision makers.

If an individual is unsatisfied by a decision made e.g. by a Secretary of State or government department s/he may appeal
Court of Appeal, Court of Session, Court of Appeal (NI)
to the First-tier Tribunal. Upper Tribunal and First Tier Tribunal Presided over by Senior President: Lord Justice Sullivan
Upper Tribunal Employment Appeals
Tribunal
The First-tier Tribunal is divided into 7 Chambers, with each Chamber having its own President and its own area of law
President:
Mr Justice Brian
Administrative Appeals Chamber Tax and Chancery Chamber Immigration and Asylum Chamber Lands Chamber
e.g. social President:
security. Mr Justice This separation President:
William Charles into Mrlegal-area
Justice Nicholas Warren Chambers allows
President: theMcCloskey
Mr Justice Bernard system to continue
President: Mr Justice
Keith Lindblom
to provide specialist
Langstaff

judges with
safeguardingrelevant experience
(First instance jurisdiction: forfeiture cases and
of vulnerable persons. It has also been
allocated some judicial review functions.)
to the areaand in question
(First instance jurisdictions: Financial Services
and Markets Pensions Regulator.) in each individual case.
Hears appeals from: Taxation Chamber and
Also hear appeals from: PAT (Scotland), from the Charity jurisdictions in the General
PAT (NI) (‘assessment’ appeals only), Regulatory Chamber. It has also been
MHRT (Wales), allocated
SENT (Wales) some judicial review functions.

First Tier Tribunal Employment Tribunal

(England and Wales)
President:
War Pensions and Social Entitlement Health, Education General Regulatory Tax Chamber Immigration and Property Chamber Employment Judge
Armed Forces Chamber and Social Care Chamber President: Asylum Chamber President: Brian Doyle
Compensation President: Chamber President: Judge Colin Bishopp President: Siobhan McGrath
President: Judge John Aitken President: Judge Michael Employment Tribunal
Judge Nicholas Warren Residential property,
Jurisdictions include: (Scotland)
Acting President Clare Jurisdictions: Social HHJ Phillip Sycamore Jurisdictions include: Clements Agricultural lands &
Horrocks Charity (onward Direct and indirect President:
Security and Jurisdictions: Immigration and drainage,
appeals to Tax & taxation, Employment Judge
England and Wales Child Support,* Asylum Land Registration
Mental Health, Chancery), Shona Simon
appeals only MPs Expenses (onward appeals to
Asylum Support,** Special Educational Consumer Credit, Tax Chancery)
Criminal Injuries Needs and Disability, Estate Agents,
Compensation Care Standards,
Transport (Driving
Primary Health Lists Standards Agency
Appeals),
Information Rights,
Claims Management
Services,
Gambling,
* Except NHS charges in Immigration Services,
Scotland Local Government
** Standards,
No onward
right of appeal Environment

Key: United Kingdom Great Britain England and Wales England only Scotland only
 ACTIVITY 1
1. How many cases a year do you think the first tier tribunal deals with
per year?
2. How many judges does the first tier tribunal have?
3. How many lay members does the first tier tribunal have?

ACTIVITY 2

What are the 7 chambers (divisions) of the first tier tribunal?

 The Tribunals, Courts and Enforcement Act 2007
Upper Tier Tribunal

The Upper Tribunal is mainly an appellate tribunal to hear appeals from the
First-Tier tribunal. It also has primary jurisdiction to hear certain matters
including finance and tax matters.

Further appeals from the UTT lie to the Court of Appeal Civil Division and the
Supreme Court

ACTIVITY 3
What are the four chambers of the upper tribunal?
 Tribunals - Powers
The main power that the Tribunals have under the new structure is to
overrule decisions made by state officials and substitute its own findings
where:

•There has been a mistake of fact

•There has been a mistake of law

•The official's discretion has been exercised in a way which is incompatible

with the purpose for which that power was given.
Supervision of Tribunals – Judicial Control
The courts can exercise control over an administrative tribunal by:
•A statutory right of appeal – Appeals from Tribunal decisions (UTT) can go to
the Court of Appeal, and from there to the Supreme Court;

•Judicial review of Tribunal decisions on the grounds of ultra vires,

procedural defects or misinterpretation of the law
 Class Activity 4

Make a list of the advantages and

disadvantages of administrative
tribunals.
 Ombudsman
Purpose: Investigate complaints about the administrative actions of public
bodies.

There is now more than one ombudsman scheme:

ACTIVITY:
Research and make a list of as many ‘Ombudsman’ schemes as you can find.
What areas are covered by ‘Ombudsman’ schemes?
 Ombudsman
Ombudsmen were first introduced in 1967 with the Parliamentary Commissioner Act 1967
(the Parliamentary Commissioner for Maladministration). This Ombudsman investigates
complaints about the activities of central government departments.

This scheme was followed by Ombudsmen who dealt with complaints about Local
Government and later the National Health Service

As we have already seen, these schemes have proved popular and are now used widely in
relation to private disputes, as well as public law ones, in the fields of Banking, Insurance and
Legal Services amongst others.

Status and Jurisdiction

•Ombudsmen who operate in the public sector are appointed by the Crown
•They are independent of any government department
•Their power extends to the investigation of 'injustice in consequence of maladministration'
(Parliamentary Commissioner Act 1967, s 5)
 What is maladministration?
ACTIVITY:
Research what you understand by the word
‘maladministration'.
Research what the Parliamentary Ombudsman
can (and cannot) investigate
Hint: Look on the Ombudsman’s website
www.parliament.ombudsman.gov.uk or see
section 4 and Sch 2 of the 1967 Act
 What is maladministration?
maladministration
Noun
inefficient or dishonest administration; mismanagement.

What the Parliamentary Ombudsman can (and cannot) investigate

Organisations we can't investigate

Organisations we can investigate There are some things we can't generally look at,
usually because somebody else is in charge of
We can investigate complaints about the NHS in investigating complaints about them. They
England and UK government departments and include:
some other public organisations. You need to
complain to the organisation first. Courts, education, local councils, Members of
Parliament, police and private healthcare unless it
A full list of government organisations the was funded by the NHS.
ombudsman can investigate can be found
here!! A full list of organisations the ombudsman can
investigate can be found here!!

Roles
 What is maladministration?

The guide “Principles for Good Administration” can be found here!!

 Access to the Ombudsman
MP filter –The Ombudsman can only investigate where ‘a written complaint is duly made to
a member of the House of Commons’ [PCA 1967, s 5(1)(a)].

Ombudsman has complete discretion whether to investigate complaint or not (R v.

Parliamentary Commission for Administration ex.p Dyer [1994] 1 All ER 375)

If complaint accepted, Ombudsman would investigate and report back to MP who made
complaint.

Ombudsman – Powers
Ombudsman’s recommendations are NOT legally binding and the government department
against which maladministration has been found are not obliged to follow them.

HOWEVER, they are seen as persuasive, and departments nearly always follow them
Typical recommendations are:
•Financial compensation
•Recommend a public body apologies to the complainant, provide an explanation and
acknowledgement of what went wrong; or
•Reconsider a decision.
 Public Inquiries - Introduction
Four main purposes:
1.ascertaining the facts; and
2.learning lessons for the future
3.reconciliation and resolution
4.Accountability blame and retribution

Normally set up to investigate wide-spread loss of life (e.g. Rail disasters or

terrorist attacks) or where there has been a shocking crime (e.g. the Harold
Shipman murders) or after tragic, perhaps avoidable, events have occurred
(e.g. the Victoria Climbié, Peter Connolly and other cases of severe child
neglect).
 Public Inquiries: The Statutory Framework

Main legislative provision is the Inquiries Act 2005.

For the first time in statute the Act lays down all key stages of the inquiry
process - from setting up the inquiry, through appointment of the Panel to
publication of reports.

Section 1(1): permits a minister to set up a Public Inquiry if there are events
which have or may cause “public concern”.

ACTIVITY: In groups, discuss what you think this means and what sort of
‘events’ might cause ‘public concern’?
 Public Inquiries: The Statutory Framework
Section 14 permits minster to bring an inquiry to a conclusion before publication of the report

Section 19 allows minster to restrict attendance at an inquiry or to restrict disclosure or publication of

evidence

Section 25 makes the minister responsible for publishing the conclusions of an inquiry and for
determining whether any material should be withheld in ‘the public interest’

Convening the Inquiry

Once a minister has decided that a public inquiry should be set up, he/she
will establish the inquiry by:

1.Drafting the terms of reference.

2.Selecting the inquiry Panel – this will involve deciding on who should be the
Inquiry Chairman and whether the inquiry is to be a judicial one.
3.Amending the terms of reference where appropriate.
 Is there a legal obligation to hold an inquiry?
The Act (s 1(1)) says that the minister ‘may’ cause an inquiry to be held. As the decision is a
discretionary one, the exercise of the minister’s discretion is subject to review by the courts.

Attempts to ‘force’ the holding of an inquiry have met with mixed success.

CLASS ACTIVITY 5:

Please research the following cases in groups :

•R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292

•R v Secretary of State for the Home Department, ex parte Amin [2003] UKHL 51
•R (Gentle) v Prime Minister [2008] UKHL 20

What were the brief facts of each case?

What was the outcome?
What was the court’s reasoning behind its decision?
 The Inquiries Act 2005: Criticisms

Main criticisms of the provisions of the Act are:

1)Holding of inquiry does not require resolution of Parliament, and so allows minister’s too
much control over whether an inquiry is held at all and, if one is, the terms upon which the
inquiry is convened.

2)Not seen as sufficiently independent, because of degree of ministerial control

Public Inquiries – Reporting

The report of a public inquiry will usually be a mandatory requirement of the terms of
reference and will be the main vehicle for conveying the findings and recommendations to
the Minister.

The Chairman is under an obligation under Inquiries Act 2005, s 24(1) to produce a report
for the minister

The Report must, under s 24(5), contain:

1.Findings of fact
2.Recommendations