The Judicialisation of ‘Administrative’ Tribunals in the Uk: From Hewart to Leggatt

Abstract

<p>This paper traces the development of administrative tribunals in the UK, from the modern phase of their development in the second half of the 19th century, via some constitutional controversies in the first half of the 20th century, to the radical overhaul of the tribunal system that has been taking place in the last few years – in parallel (so far as recent developments are concerned) with other major reforms of the machinery of justice. The story is one of a fairly steady movement towards an increasing formalisation and judicialisation of the tribunal system. In this context ‘judicialisation’ means that tribunals have become more and more like ordinary courts, adopting formal and increasingly adversarial procedures (thereby perhaps making life harder for unrepresented appellants, the traditional core-users of the system). We will consider whether this tendency is, on balance, a good thing. We will also need to reflect on whether – recent reforms notwithstanding – the word ‘system’ is strictly apposite in this context, given the piecemeal development and continuing diversity of tribunals; and whether use of the adjective ‘administrative’ may beg too many questions about the nature and raison d’être of tribunals (hence the inverted commas round the word in the title of this article). Sometimes the more neutral adjectives, ‘special’ or ‘specialist’ have been used. Important landmarks in the history of tribunals have been the reports of three major official inquiries – the Donoughmore Report, (Donoughmore, 1932), the Franks Report, (Franks, 1957) and the Leggatt Review, (Leggatt, 2001). The terms of reference of these inquiries, discussed in the body of the article, can be found in Appendix 1. Appendix 2 lists some of the main administrative tribunals that were under the supervision of the (former) Council on Tribunals1 in the mid-1990s, before the changes set in motion by the Tribunals, Courts and Enforcement Act 2007. Appendix 3 gives a snapshot of the (still evolving) reformed tribunal system, following the coming into force of the 2007 Act. 1 On 1 November 2007 the Council on Tribunals was replaced by the Administrative Justice and Tribunals Council, established by the Tribunals, Courts and Enforcement Act 2007. See below.</p