2007 Chapter 15

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These notes refer to the Tribunals, Courts and Enforcement Act 2007 (c.15) which received Royal Assent on 19th July 2007

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

EXPLANATORY NOTES

INTRODUCTION

1.           These explanatory notes relate to the Tribunals, Courts and Enforcement Act 2007 which received Royal Assent on 19th July 2007. They have been prepared by the Ministry of Justice in order to assist the reader of the Act. The explanatory notes have not been endorsed by Parliament.

2.           The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given. Where a section makes a change to the system currently in place, an overview is given of that system followed by an explanation of the change that the Act makes.

OVERVIEW

3.           The Tribunals, Courts and Enforcement Act implements the main recommendations contained in the following reports and papers:

• the White Paper, Transforming Public Services: Complaints, Redress and Tribunals, ¹ published in July 2004 ("Transforming Public Services");

¹Command paper 6243

• the consultation paper Increasing Diversity in the Judiciary, published in October 2004;

• the Law Commission Report, Landlord and Tenant - Distress for Rent, ² published in February 1991 ("the Law Commission's Report");

²February 1991, Report No. 194

• a Report to the Lord Chancellor, Independent Review of Bailiff Law, by Professor J. Beatson QC published in July 2000;

• a White Paper, Effective Enforcement, published in March 2003 ("Effective Enforcement");

• a consultation paper, A Choice of Paths: better options to manage over-indebtedness and multiple debt, published on 20 July 2004 ("the Choice of Paths Consultation");

• a consultation paper, Relief for the Indebted, an alternative to bankruptcy, published in March 2005; and

• a consultation on providing immunity from seizure for international works of art on loan in the UK (March 2006).

4.           The explanatory notes are divided into parts reflecting the structure of the Act. For each part, there is a summary of the provisions and commentary on the background to the proposals. Commentary on particular sections in each part is set out in numerical order, with the commentary on the various Schedules included with the section to which they relate.

5.           The Act is divided into 8 Parts:

Part 1: Tribunals and Inquiries

Part 1 creates a new, simplified statutory framework for tribunals which provides coherence and will enable future reform. It brings the tribunal judiciary together under a Senior President. It also replaces the Council on Tribunals, the supervisory body for tribunals, with the Administrative Justice and Tribunals Council, which has been given a broader remit.

Part 2: Judicial Appointments

Part 2 provides for revised minimum eligibility requirements for appointment to judicial office, including provision to enable eligibility to be extended, by order, beyond barristers and solicitors to the holders of other relevant qualifications, such as legal executives. It also contains some other amendments relating to the selection procedure for certain judicial appointments, and the appointment of the Chairman of the Law Commission.

Part 3: Enforcement by Taking Control of Goods

Part 3 unifies the existing law relating to enforcement by seizure and sale of goods for most purposes. It also replaces the current law of rent distress with a modified regime for recovering rent arrears in the commercial property sector.

Part 4: Enforcement of Judgments and Orders

Part 4 contains measures to help creditors with claims in the civil court to enforce their judgments, including a new court-based mechanism to help the court gain access to information about the judgment debtor, on behalf of the creditor.

Part 5: Debt Management and Relief

Part 5 makes changes to two statutory debt-management schemes, administration orders and enforcement restriction orders. Part 5 also contains measures which provide debtors who are unable to pay their debts with relief from enforcement and discharge from their debts. In addition, Part 5 contains non-court based measures to help over-indebted persons and those with multiple debt situations manage their indebtedness.

Part 6: Protection of cultural objects on loan

Part 6 provides immunity from seizure to objects which have been lent to this country from overseas to be included in a temporary exhibition at a museum or gallery.

Part 7: Miscellaneous

Part 7 makes changes to the ability of High Court enforcement officers and the obligation on High Sheriffs to execute writs of possession issued to enforce compulsory purchase orders. Part 7 also amends section 31 of the Supreme Court Act 1981 ("SCA 1981") enabling the High Court to substitute its decision for that of a court or tribunal in certain circumstances. Part 7 additionally provides for enforcement of ACAS-supervised settlements of employment disputes. It also provides for appeals to go to the courts instead of to the tribunal set up by section 28 of the Registered Designs Act 1949.

Part 8: General

Part 8 contains technical provisions including those about implementation.

PART 1: TRIBUNALS AND INQUIRIES

SUMMARY

4.           The policy intention underlying Part 1 of the Act is to create a new, simplified statutory framework for tribunals, bringing existing tribunal jurisdictions together and providing a structure for new jurisdictions and new appeal rights.

5.           The Act provides a new unified structure by creating two new tribunals, the First-tier Tribunal and the Upper Tribunal. It gives the Lord Chancellor power to transfer the jurisdiction of existing tribunals to the two new tribunals. Further, the Lord Chancellor is empowered to transfer to himself certain statutory powers and duties in relation to the administration of tribunals. The Act places the Lord Chancellor under a general duty to provide administrative support to the new tribunals, and also to the employment tribunals, Employment Appeal Tribunal and Asylum and Immigration Tribunal (AIT).

6.           The Act also creates a new judicial office, the Senior President of Tribunals, to oversee tribunal judiciary. The Senior President will be the judicial leader of the tribunals system. The Senior President of Tribunals holds a distinct statutory office and in carrying out the functions of that office is not subject to the direction of any other judicial office holder. The Act provides for the membership of the tribunals, rights of appeal from the tribunals and the making of new Tribunal Procedure Rules. The Act also gives the Upper Tribunal the power to exercise a judicial review jurisdiction in certain circumstances. Further, the Act also replaces the Council on Tribunals with the Administrative Justice and Tribunals Council, which will have a broader remit over the whole of the administrative justice system.

BACKGROUND

7.           Tribunals constitute a substantial part of the justice system. They deal with a wide range of disputes including those between the individual and the state (such as benefits, tax and immigration) and between private individuals (such as employment disputes).

8.           Until now, most tribunals have been created by individual pieces of primary legislation, without any overarching framework. Many have been administered by the government departments responsible for the policy area in which that tribunal has jurisdiction. Those departments are sometimes responsible for the decisions which are appealable to the tribunal.

9.           In the report of his Review of Tribunals, Tribunals for Users - One System, One Service, published in August 2001, Sir Andrew Leggatt recommended extensive reform to the tribunals system. He recommended that tribunals should be brought together in a single system and that they should become separate from their current sponsoring departments. He recommended that such a system be administered instead by a single Tribunals Service, in what was then the Lord Chancellor's Department.

10.           The Government agreed and published its response to the report in the White Paper Transforming Public Services: Complaints, Redress and Tribunals in July 2004.

The new tribunals

11.           The Government's response to Sir Andrew Leggatt's recommended single tribunal system is to create two new, generic tribunals, the First-tier Tribunal and the Upper Tribunal, into which existing tribunal jurisdictions can be transferred. The Upper Tribunal is primarily, but not exclusively, an appellate tribunal from the First-tier Tribunal.

12.           The Act also provides for the establishment of "chambers" within the two tribunals so that the many jurisdictions that will be transferred into the tribunals can be grouped together appropriately. Each chamber will be headed by a Chamber President and the tribunals' judiciary will be headed by a Senior President of Tribunals.

Membership, deployment and composition

13.           A distinctive feature of tribunals in their current form is their membership. Some tribunals consist of a lawyer sitting alone. Others comprise a lawyer sitting with one or more members who may be experts in their field (such as doctors or accountants) who have experience relevant to the work of the tribunal, or have no relevant experience but have generic skills. A few tribunals have no legal members at all.

14.           At present, there is no coherent system in place for deploying tribunal members. While some sit in more than one jurisdiction, this will be as a result of the member having gone through the whole appointments process for each additional jurisdiction.

15.           The Act creates new offices for the First-tier and Upper Tribunal. It creates new titles (giving the legal members the title of judges) and a new system of deployment. Judges of the First-tier Tribunal or Upper Tribunal will be assigned to one or more of the chambers of that tribunal, having regard to their knowledge and experience. The fact that a member may be allocated to more than one chamber allows members to be deployed across the jurisdictions within the tribunal. It is expected that the current members of transferred tribunals, apart from the General Commissioners, will become members of the new tribunals.

Reviews and appeals and the judicial review jurisdiction of the tribunals

16.           Currently there is no single mechanism for appealing against a tribunal decision. Appeal rights differ from tribunal to tribunal. In some cases there is a right of appeal to another tribunal. In other cases there is a right of appeal to the High Court. In some cases there is no right of appeal at all. The Act provides a unified appeal structure. Under the Act, in most cases, a decision of the First-tier Tribunal may be appealed to the Upper Tribunal and a decision of the Upper Tribunal may be appealed to a court. The grounds of appeal must relate to a point of law. The rights to appeal may only be exercised with permission from the tribunal being appealed from or the tribunal or court, as the case may be, being appealed to.

17.           It will also be possible for the Upper Tribunal to deal with some judicial review cases which would otherwise have to be dealt with by the High Court or Court of Session. The Upper Tribunal has this jurisdiction only where a case falls within a class specified in a direction given by the Lord Chief Justice or in certain other cases transferred by the High Court or Court of Session, but it will not be possible for cases to be transferred to the Upper Tribunal if they involve immigration or nationality matters.

18.           Instead of tribunal rules being made by the Lord Chancellor and other government Ministers under a multiplicity of different rule-making powers, a new Tribunal Procedure Committee will be responsible for tribunal rules. This committee has been modelled on existing rule committees which make rules of court.

Transfer of tribunal functions

19.           It is intended that the new tribunals will exercise the jurisdictions currently exercised by the tribunals listed in Parts 1 to 4 of Schedule 6, which constitute most of the tribunal jurisdictions administered by central government. The Government's policy is that in the future, when a new tribunal jurisdiction is required to deal with a right of review or appeal, that right of appeal or review will be to these new tribunals.

20.           Some tribunals have been excluded from the new structures because of their specialist nature. Tribunals run by local government have for now been excluded, as their funding and sponsorship arrangements are sufficiently different to merit a separate review.

21.           There are also tribunals that will share a common administration, and the leadership of the Senior President of Tribunals, but whose jurisdictions will not be transferred to the new tribunals. They are the AIT, the employment tribunals and the Employment Appeal Tribunal. The AIT has a unique single-tier structure (as prescribed by the Nationality, Immigration and Asylum Act 2002, as amended by the Asylum and Immigration (Treatment of Claimants etc) Act 2004) which would not fit into the new structure established by the Act. The employment tribunals and the Employment Appeal Tribunal are excluded because of the nature of the cases that come before them, which involve one party against another, unlike most other tribunals which hear appeals from citizens against decisions of the State.

Administrative Support

22.           In Transforming Public Services, the Government set out its plans to create a single Tribunals Service to provide common administrative support to the main central government tribunals. The new Service, an executive agency of what was the Department for Constitutional Affairs (DCA) and is now the Ministry of Justice (MoJ), was launched in April 2006. It provides support to a range of tribunals, including the Asylum and Immigration Tribunal, the Social Security and Child Support Tribunals, the employment tribunals and the Employment Appeal Tribunal, and the Mental Health Review Tribunals in England. Most tribunals which are the responsibility of central government are now administered by the Tribunals Service, or will join the Service over the next few years.

23.           The Tribunals Service was created by machinery of government changes. Legislation was not required. The Act does not, therefore, set out a blueprint for the new agency. The Act does, however, give the Lord Chancellor the power to transfer to himself certain statutory powers and duties that primarily relate to the provision of administrative support for tribunals. It entrenches these powers and duties with the office of the Lord Chancellor so that they can be transferred to another minister only by primary legislation.

24.           In developing these proposals, the intention has been to follow the principles underlying the evolving constitutional settlement between the executive and the judiciary set out in the concordat agreed between the Lord Chancellor and the Lord Chief Justice for England and Wales in January 2004, and the Constitutional Reform Act 2005 ("CRA 2005").

Oversight of Tribunals and Inquiries

25.           The Council on Tribunals ("the Council") operates under the Tribunals and Inquiries Act 1992 ("the 1992 Act"). Its statutory purpose is to keep under review and report on the constitution and working of tribunals under its supervision. The Council has to consider and report on particular matters that may be referred to it under the 1992 Act with respect to tribunals and, where necessary, to consider and report on the administrative procedures of statutory inquiries. The Council is also under a statutory duty to make an annual report about its work, which is to be laid before Parliament. The Council seeks to ensure that tribunals and inquiries meet the needs of users through the provision of an open, fair, impartial, efficient, timely and accessible service.

26.           Sir Andrew Leggatt recommended that the Council on Tribunals should play a central role in the new tribunals system (recommendations 168-182). Transforming Public Services built on these recommendations in the wider context of the Government's proposals for reforming the Administrative Justice System. Chapter 11 of the White Paper proposed that with the creation of the Tribunals Service in April 2006 it was also necessary for the Council to change. It proposed that the Council should take on a wider remit to become an Administrative Justice and Tribunals Council and in particular to focus on the needs of the public and users.

Administrative Justice and Tribunals Council

27.           Under this Act, the Administrative Justice and Tribunals Council ("the AJTC") will adopt a role in relation to the supervision of tribunals similar to that currently exercised by the Council on Tribunals. But in addition to taking on the Council on Tribunals' current remit, the AJTC will be charged with keeping the administrative justice system as a whole under review. It is tasked with considering how to make the system more accessible, fair and efficient, and advising the Lord Chancellor, the Scottish Ministers, Welsh Ministers and the Senior President accordingly.

28.           The AJTC's wider administrative justice role will be concerned with ensuring that the relationships between the courts, tribunals, ombudsmen and alternative dispute resolution routes satisfactorily reflect the needs of users.

29.           The AJTC will be of a comparable size to the present Council on Tribunals, with between 10 and 15 members appointed by the Lord Chancellor, and by Ministers from the devolved administrations. One of those appointed members will be nominated by the Lord Chancellor, after consultation with the Scottish and Welsh Ministers, to chair the AJTC. Whereas the Council has just a Scottish Committee, the AJTC will have Scottish and Welsh Committees.

Enforcement

30.           Tribunals have no enforcement powers of their own. If a monetary award is not paid then, in England and Wales, the claimant must register it in the county court and use the enforcement methods available there (for example see section 15 of the Employment Tribunals Act 1996). Transforming Public Services undertook to simplify the system so that an award of compensation, whether ordered by the tribunal or agreed between the parties (under compromises involving the Advisory, Conciliation and Arbitration Service (ACAS)), can be enforced with the minimum of bureaucracy as if it were an order of the civil courts.

31.           The Act will remove the need for registration of unpaid awards in the county court or the High Court and provide that they can be enforced as if they bear the right to a warrant of execution. Claimants will be able to go directly to the county court or High Court for enforcement.

32.           Essentially, the legislative changes will (a) allow claimants to proceed immediately to enforcement (levelling the playing field between tribunal users and other civil claimants), and (b) ensure that those owed money as a result of a tribunal hearing can benefit from improvements to the wider civil enforcement system.

33.           The procedure for enforcing tribunal awards in England and Wales (and Northern Ireland), and ACAS brokered agreements (see section 142), will become similar to the Scottish process, in that the award will be treated as enforceable without any intermediate steps being necessary. Part 1 of the Act does not alter the methods of enforcement either in Scotland or in England and Wales (or Northern Ireland), but allows tribunals to benefit from them.

34.           In addition, the Act provides for unpaid awards to be entered on the Register of Judgments, Orders and Fines, see paragraph 55 of Schedule 8, (which may be searched by banks, building societies, and credit companies when considering applications for credit). The Act also makes it easier for the courts to obtain information about the debtor, as claimants will be able to make information requests under the provisions contained in Part 4 of the Act, which will help them to identify what kind of court action it would be appropriate to take to recover the debt.

COMMENTARY ON SECTIONS: PART 1

Section 1: Independence of tribunal judiciary

35.           Section 1 ensures that the duty imposed on the Lord Chancellor and other Ministers of the Crown under the Constitutional Reform Act 2005 (the CRA 2005), to uphold the continued independence of the judiciary, extends to all of the tribunal judges where a tribunal is administered by the Lord Chancellor. To do this, the definition of "the judiciary" in section 3 of the CRA 2005 is amended to make it clear that, so far as they are not already included within that definition, all office-holders listed in Schedule 14 to that Act, and certain additional tribunal office-holders are within that definition.

Section 2 and Schedule 1: Senior President of Tribunals

Section 2

36.           Section 2 creates a new statutory judicial post - that of Senior President of Tribunals. The post is intended to provide unified leadership to the tribunals judiciary. The creation of the post was recommended by Sir Andrew Leggatt in his review.

37.           Subsection (1) stipulates that the Senior President is to be appointed by HM the Queen on the recommendation of the Lord Chancellor.

38.           The Act creates a number of specific powers and duties for the Senior President, including:

• his concurrence in relation to the chambers structure for the First-tier Tribunal and the Upper Tribunal (and any change in it) (section 7(1));

• that he may, with the concurrence of the Lord Chancellor, make provision for the allocation of functions between chambers (section 7(9));

• his duty to report to the Lord Chancellor on matters which the Senior President wishes to bring to the attention of the Lord Chancellor and matters which the Lord Chancellor has asked the Senior President to cover (section 43);

• his power to make practice directions (section 23);

• the right to be consulted on the making of fees orders (section 42(5));

• his concurrence in relation to the making of orders prescribing the qualifications required for appointment of members of the First-tier Tribunal (Schedule 2, paragraph 2(2)) and the Upper Tribunal (Schedule 3, paragraph 2(2));

• the power to request a judge of the First-tier Tribunal or the Upper Tribunal to act as a judge of those tribunals (Schedule 2 paragraph 6(2); Schedule 3 paragraph 6(2));

• the duty to maintain appropriate arrangements for training, welfare and guidance of judges and other members (Schedule 2 paragraph 8; Schedule 3 paragraph 9);

• the duty to co-operate with the Lord Chief Justices of England and Wales and Northern Ireland, and the Lord President in relation to the training, welfare and guidance of the tribunals judiciary (section 47);

• the power to take oaths of allegiance and judicial oaths (or to nominate someone to do so) from judges and other members of the First-tier and Upper Tribunal (Schedule 2 paragraph 9, and Schedule 3 paragraph 10) and Chamber Presidents, Deputy Chamber Presidents and Acting Chamber presidents (Schedule 4, paragraph 8). Employment tribunal presidents and panel members, and their counterparts in the EAT are covered in Schedule 8 (paragraphs 40 and 44), as are Criminal Injuries Compensation Appeals Panel (CICAP) adjudicators (at paragraph 34);

• the right to be consulted before the Lord Chancellor appoints a Chamber President from among the ranks of the judiciary (Schedule 4, paragraph 2(1));

• the power to assign judges and other members to chambers (Schedule 4, paragraph 9);

• being or nominating a member of the Tribunal Procedure Committee (it is expected that the Senior President or his nominee will chair the Committee) (Schedule 5 paragraph 20);

• the power to request the appointment of additional members of the Tribunal Procedure Committee (Schedule 5 paragraph 24).

39.           Subsection (3) sets out principles that the Senior President has to have regard to when exercising the powers of the office. These criteria are based on the long-standing principles underlying the jurisdiction of tribunals, as originally articulated by the Report of the Committee on Administrative Tribunals and Inquiries in 1957 (the Franks Report).

Schedule 1

40.           Schedule 1 sets out the process for appointing a Senior President and the terms of his office. This is a judicial appointment. The appointment is made by Her Majesty the Queen (section 2(1)), in line with the practice for senior judicial appointments generally. Her Majesty acts on the recommendation of the Lord Chancellor.

41.           Paragraph 1 provides that if there is a vacancy, the Lord Chancellor must recommend a person for appointment to the office unless the Lord Chief Justice agrees that it may remain unfilled.

42.           Paragraph 2 provides that there are two alternative routes for the Lord Chancellor to make a recommendation in relation to the appointment of the Senior President. The first is where the Lord Chancellor, the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland agree on the nomination of a Lord or Lady Justice of Appeal or a member of the Inner House of the Court of Session as a suitable candidate for appointment. In such circumstances the Lord Chancellor must recommend the person for appointment unless that person refuses the recommendation or does not agree to the recommendation within a specified time or is otherwise not available to be recommended within a certain time. The second route applies when there is no such agreement. In those circumstances the Lord Chancellor must ask the Judicial Appointments Commission to select someone for recommendation for appointment.

43.           Paragraphs 3 to 5 set out the process for selection by the Judicial Appointments Commission. It follows as closely as is appropriate the criteria and process for appointment of Heads of Division of the High Court under sections 67 to 75 of the CRA 2005.

44.           Paragraph 3 provides that the eligibility requirement for the Senior President is the same as the eligibility requirement for a Lord or Lady Justice of Appeal, once amended by paragraph 13(2) of Schedule 10 to the Act.

45.           Paragraph 4 inserts seven new sections into the CRA 2005. These sections create a process for the selection of the Senior President by the Judicial Appointments Commission which is the same as the process for appointment of a Head of Division of the High Court, except that the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland are consulted, because the Senior President has United Kingdom-wide responsibilities. The selection panel for the appointment of the Senior President consists of the Lord Chief Justice, or his nominee, a person designated by the Lord Chief Justice, the Chairman of the Commission or his nominee and a lay member of the Commission designated by the third member. The person designated by the Lord Chief Justice is intended to be a present or former office holder in tribunals to bring to the selection panel direct knowledge or experience of the distinctive nature of tribunals in the justice system.

46.           Paragraphs 6 to 10 set out the terms of office for the Senior President. The Senior President may be appointed either for a fixed term or for an indefinite period subject only to the retirement provisions of the Judicial Pensions and Retirement Act 1993. The Senior President may only be removed from office by Her Majesty on an address presented to Her by both Houses of Parliament.

47.           The Senior President may resign at any time. If the Lord Chancellor, the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland agree that the holder of the office is disabled by permanent infirmity and is incapacitated from resigning, the Lord Chancellor may instead declare the holder to have vacated the office.

48.           Paragraph 11 provides that on appointment, the Senior President must take the oath of allegiance and the judicial oath (as set out in the Promissory Oaths Act 1868), in the presence of the Lord Chief Justice of England and Wales or another holder of high judicial office nominated by the Lord Chief Justice.

49.           Paragraphs 12 to 14 describe the powers and responsibilities of the Senior President in relation to making representations to Parliament and Ministers about matters he considers to be of importance to tribunal judiciary and other members and matters relating to the administration of justice by tribunals. Paragraph 14 makes it clear that responsibility for representing the views of tribunal judiciary and other members to Parliament, and to the Lord Chancellor and Ministers of the Crown generally, rests with the Senior President of Tribunals.