1. What can courts do that tribunals cannot do?

• Think about where tribunals originate from.  They are creatures of statute. Their jurisdiction is limited to what is laid out in the legislation.
• Now think about courts.  Are superior courts created by legislation? Or the common law? Is their jurisdiction limited to what is laid out in a statute?
• It is sometimes said that courts have an inherent jurisdiction over the administration of justice. Courts are also often said to have the jurisdiction to decide their own jurisdiction. 
• Might this mean that courts can invent new remedies and assume new powers if the administration of justice requires it?  Think about the expansion of judicial review to include judicial review of the prerogative (Council of Civil Service Unions v Minister for the Civil Service (GCHQ) [1983] UKHL 6). 
• Could tribunals likewise invent new remedies and assume new powers?

2. What can tribunals do that courts cannot do?

• Think about the strict rules of evidence that apply to courts.  Do these generally apply to tribunals? What about the rule against hearsay evidence in courts? Does it apply in tribunals?
• Think about the composition of courts, and the composition of tribunals.  Does every member of a tribunal have to be a lawyer? What other types of members are there?  Might this allow a tribunal to bring special expertise to its decision?
• Consider the dicta of Edmund Davies LJ in Metropolitan Properties Ltd v Lannon [1968] EWCA Civ 5:

‘…tribunals are basically informal in character.  Its members are not restricted to the evidence adduced before them; they are free to draw upon their cumulative knowledge and experience of the matter in hand…and they are not expected to express their decisions with the formality and precision which is required in judicial proceedings…’ (second paragraph of judgment).

• Think about Section 9 and Section 10 Tribunals, Courts and Enforcement Act 2007.  Can courts reconsider their own decisions once they are made?

3.  What is the purpose of tribunals, and why is it best served by a tribunal as opposed to a court or some other dispute resolution system?

• Why do tribunals form part of the administrative justice system? Think about the principle of proportionate process.
• This principle requires a range of dispute resolution techniques to exist within the administrative justice system, so that the appropriate technique can be deployed in a particular case.
• Might tribunals then just be one such technique, which form part of the administrative justice system because they are an appropriate technique to deal with a certain type of case? What would make a dispute more suitable for resolution by a specialized tribunal rather than by a court of general jurisdiction?
• What is the purpose of tribunals?  Consider the commonly accepted advantages of tribunals.  They are:
• Independent
• Accessible
• Prompt
• Expert
• Informal
• Cheap
• So what type of cases are tribunals appropriate to deal with?  Those where there is a clear dispute between two parties, that requires independent resolution, but where a quick resolution of the issue is imperative; where expert knowledge may be required; and where the complainant may be vulnerable and cannot afford to pay much to resolve the dispute?
• Why do tribunals deal with this type of case, rather than a court or some other dispute resolution system? Consider whether, in this type of case,
• The courts can offer all the advantages tribunals can
• Other types of dispute resolution (mediation, ombudsmen, internal reviews within departments) can offer all these advantages
• Can you think of cases where a tribunal is not the appropriate technique for resolving a dispute?  What if an authoritative ruling in the case is more important than promptness? What if the problem is systematic rather than individualized?

4. If a tribunal fails to give a fair hearing, is the possibility of an appeal on a question of law enough to remedy the unfairness?

• Whether a fair hearing has been given is a question of law.
• Consider the dicta of Lord Templeman in Lloyd v McMahon [1987] UKHL 5 at 25.  Where an appeal lies from a tribunal to a court of law, in considering whether an appeal is likely to be sufficient to cure the tribunal’s unfairness, he draws a distinction between
• a situation where the court is free to determine the appeal on the basis of evidence before it
• a situation where there is only an appeal on a question of law, or the court must rely on the facts as found by the tribunal.
• Into which category would judicial review of a tribunal’s decision be likely to fall?
• So is the possibility of appeal to the Upper Tribunal/Court of Appeal on a question of   law enough to remedy the unfairness?  Will the Upper Tribunal/Court of Appeal allow a procedurally unfair decision to stand?
• If they do set aside a decision for unfairness, remember the ability of the Upper Tribunal and the Court of Appeal to remake a decision that they find to be vitiated by an error of law, making any finding the First-tier Tribunal could have made, and any finding of fact they consider appropriate (s 12 & 14 TCE Act 2007).

5. Is there any good reason for the Immigration and Asylum Tribunal to have a different structure and process from other tribunals?

• The Immigration and Asylum Tribunal has distinct appeal processes with short time limits, and a separate process for matters involving national security (through the Special Immigration Appeals Commission).
• The fact that the issues are different from other tribunals does not necessarily justify the differences in process, as all the different Chambers of the First-tier Tribunal deal with different issues in the same structure. If the differences in asylum and immigration process are justified, it must be because there are special process dangers in the asylum and immigration business. Are there such dangers? Are there special reasons to expedite dispute resolution, and to curtail the opportunities of complainants to pursue litigation?

6. Is there any general difference between a citizen-and-state tribunal decision, and the decision of a court in a tort action against a public authority? Why couldn’t tribunals take over the complaints that are currently pursued in the tort actions discussed in Chapter 14?

• First, consider the nature of the dispute being dealt with. 
• Proceedings in citizen-and-state tribunals deal with decisions of the government under certain legislative programmes that particularly affect specific individuals. 
• A court action in tort against a public authority is concerned with a wrongful action of one party causing harm to another under the general law, where the party causing the harm happens to be the government.
• Secondly, consider the remedy being sought
• In proceedings before a citizen-and-state tribunal, the citizen wants the state to come to a different decision regarding him
• In a tort action against a public authority before a court, the citizen (generally) wants damages for the harm caused to him in the past by the actions of the public authority.  
• Thirdly, consider the implications of a tribunal taking over these complaints.
• Legislation would have to provide that a tribunal had jurisdiction to hear all tort actions against the government.  Would it be difficult to draft such legislation? How would the system cope with developments in the common law of tort?
• Would this detract from the traditional generality of the common law? Would this be a move towards a more continental-model of administrative law, with different courts, laws and procedures depending on whether the dispute was between two private citizens, or between a private citizen and the government?

7. What is the difference between the principle of proportionate decision-making and the principle (from the 1958 Franks Committee) that a dispute should be resolved by a court unless special considerations make a tribunal preferable?

• Think about the approach the Franks Committee principle leads to.  When deciding how to organise the settlement of a certain category of dispute, the Government must provide for resolution in court, unless special considerations apply.  Courts are the default position; they are ‘the norm’.
• Now consider the approach the principle of proportionate decision-making leads to.  When deciding how to organize the settlement of a certain category of dispute, is there any default mechanism? Is there any mode of dispute resolution that is ‘the norm’, which the Government must apply unless special considerations require otherwise? 
• Should there be an inbuilt predisposition towards any particular mode of dispute resolution, or should it depend entirely on the characteristics of the dispute at hand?