Working Theory

by Michael Reed

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I do employment law for the Free Representation Unit.

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michael at workingtheory.co.uk

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Specialist tribunals: respect and pragmatism

13 February 2014

Yesterday I went to an ALBA talk: Specialist Tribunals: too much respect? by Lord Justice Sullivan and Richard Drabble QC.

The talk was an excellent discussion of the issues relating to appeals from specialist tribunals. Should the Court of Appeal defer to the Upper Tribunal in relation to social security law, recognising the UT are the experts? Or should they step in bravely, recognising they are the senior court? Has once useful guidance that the specialist tribunal should be respected hardened into a rule, creating asinine arguments about whether the court should show deference, rather than focusing on whether the the tribunal below got the law right or not?

I won’t attempt to summarise the talk further.1 But I did have one follow-up thought.

Basically, I think the whole language of deference or respect (or not) for the specialist tribunal is a slight red-herring. The real issue is a pragmatic one. Who is best placed to make a decision on a particular question?

If the issue is one of fact – did X do Y – it is best resolved by the first-instance tribunal. They have heard the evidence and seen the papers. They saw the witnesses questioned. An appeal tribunal or court, no matter how great its legal expertise, isn’t in a position to second-guess them. Which is why appeals are restricted to points of law.

But this approach applies equally well beyond questions of fact. In relation to any particular question of law, who is best placed to answer it?

If the question is a pure matter of simple statutory interpretation or the application of general legal principles to the tribunal context, that must be the Court of Appeal. They are the senior court who, in theory (and generally practice) have greater legal expertise and general legal experience. They are more likely to get a pure point of law ‘right’ and part of their role is to ensure consistency in the law across different areas.

If the question involves detailed knowledge of particular area of law; a general understanding of how a particular type of law operates as a whole or of tribunal practice, that must be the Upper Tribunal. The Court of Appeal may be presumed to be better lawyers, but that advantage can’t always outweigh the Upper Tribunal’s much greater specific experience.

So when the Court of Appeal asks ‘Should we defer to the Upper Tribunal?’, they should really be asking ‘Was the Upper Tribunal in a better position to answer this question than us?’

  1. Not least because I arrived a few minutes late and so I’m not sure whether it was conducted under the Chatham House Rule. Better safe than sorry.

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