W101 16J Tutorial 5 – Student Summary

This tutorial was designed to consolidate yourknowledge and understanding of the materials in Units 11, 12, 13 & 14. It also focused on developing your skills in answering problem-style questions in preparation for TMA03.

KNOWLEDGE

Activity 1 – Tribunals

This activity is designed to ensure you have a good basic knowledge of administrative tribunals.

Tribunals are less formal than the court system.

True – this is one of the main reasons for the establishment of tribunals.

No lawyers are involved in the decision-making processes of tribunals.

False – tribunal judges are legally qualified, but laypersons often serve on panels.

Tribunal judges wear wigs and gowns.

False – the lack of wigs and gowns contributes to the informality of tribunals.

Administrative tribunals give individuals the opportunity to seek redress against government decisions.

True – an example is the Social Security and Child Support Tribunal.

The ‘Bedroom Tax’ has been the subject of tribunal appeals.

True - Many tribunal appeals have been brought against bedroom tax decisions made by local housing authorities. Some have been appealed to the Upper Tribunal and a handful to the Court of Appeal and four linked cases were considered by the Supreme Court

Tribunal judges must be experts in the area relevant to the tribunal in which they sit.

True – this is in contrast with other judges, who hear cases on a wide variety of legal points. The specialist nature of tribunals is designed to contribute to their efficiency.

Most claimants before tribunals represent themselves.

True – making the proceedings fair to these ‘litigants in person’ is an important part of a tribunal judge’s role. This must be balanced with the need to remain impartial, especially when one party is represented by lawyers or experienced public officials.

Only practising lawyers can apply to become tribunal judges.

False – judicial posts, including tribunal judges, are now open to Fellows of the Chartered Institute of Legal Executives, members of the Institute of Trademark Attorneys, members of the Chartered Institute of Patent Attorneys and individuals with non-traditional legal backgrounds.

The term tribunal can also refer to bodies set up by private organisations for the purposes of internal discipline.

True - Bodies for professionals such as doctors, barristers and solicitors can hold their members to account for breaches in professional standards via an internal tribunal. For example, the Bar Standards Board regulates barristers and may conduct disciplinary tribunals for barristers who are in breach of their obligations under their professional code of conduct.

Activity 2 – Strengths and weaknesses of the tribunal system

This activity helps you in weighing up the tribunal system as you did in Unit 11 Activity 4.

Strength / Weakness / Why?
Cost / Tribunals offer the advantage of cost over the court system.
Lack of Public Knowledge / Insufficient knowledge among the general public regarding the existence and purpose of tribunals
Advice / Pre-hearing advice available to the appellants is less likely to be readily available in the future e.g. immigration
Speed / Given the less formal nature of the tribunal system the user is likely to achieve a speedier resolution than would be the case using the court system.
Informality / The character of tribunals is intended to be more informal than the court system.
Cinderella service / The straitened public finances have put an increased pressure on the Tribunals Service.
Delays / Certain jurisdictions are subject to long delays: this means that it can take up to 12 months for a decision
Expertise / Use of lay members who are able to bring a level of expertise to the proceedings
Representation / Representation by an advocate can increase the chances of success at a tribunal – cost element
Improved structure / simplified procedures, routes of appeal streamlined and distinct Tribunal service to maintain impartiality
Loss of specialist expertise / The decision to merge the Tribunals Service with the courts service in Her Majesty’s Courts and Tribunals Service may have a negative impact

Activity 3 - Employment Tribunals

This activity was designed to consolidate your knowledge of Employment Tribunals, which are discussed in Unit 11 section 7. The questions and suggested answers are as follows.

1. What is the function of Employment Tribunals?

Employment Tribunals are a separate pillar of the tribunal system., They exist to adjudicate on disputes arising between an employee and their employer. In this way they often concern disputes between private parties and so are distinct from the administrative tribunals which determine disputes between the individual and the state.

Employment Tribunals have the jurisdiction to hear a wide variety of claims relating to employment, including unfair dismissal, redundancy, maternity rights and terms of employment, as well as discrimination issues that relate to the employment relationship stemming from statutes such as the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995 (all of which have now been repealed and replaced by the Equality Act 2010).

2. What were the main reforms to Employment Tribunals that were introduced in 2013?

In response to concerns regarding the costs associated with the number of claims being made to the Employment Tribunals, the previous coalition government made a series of reforms to the Employment Tribunal system.

  • Section 108 Employment Rights Act 1996 was amended. This has the effect of extending the period of continuous employment before an employee can bring a claim for unfair dismissal to an employment tribunal.
  • Section 7 Enterprise and Regulatory Reform Act 2013 added s18A to the Employment Tribunals Act 1996. This has the effect of making a prospective claimant provide the Advisory Conciliation and Arbitration Service (ACAS) with details of the dispute prior to taking a case to the employment tribunal. ACAS will appoint a conciliation officer who will try to promote a settlement between the parties. The conciliation is not mandatory, but the clear aim of the legislation is to try to resolve disputes prior to the tribunal stage.
  • The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) introduced fees for bringing a claim to an Employment Tribunal for the first time. It is hoped that this will have the effect of discouraging baseless claims and also relieve some of the burden on the taxpayer for funding Employment Tribunals.

3. What criticisms are made of these reforms?

The arguments about whether or not these fees will mean that claimants will be unfairly excluded from bringing a claim to the employment tribunals are discussed in detail at Unit 11 section 7.2.

You may wish to draw students’ attention to the following summary of the initial impact of the introduction of fees for Employment Tribunals. It is taken from House of Commons Briefing Paper Number 7081 dated 15 September 2015 [online]. Available at: (accessed 17 September 2015).

Summary

Employment tribunal fees were introduced during July 2013 by The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893). Prior to that, since the creation of the employment tribunal system, claimants were not required to pay fees to bring their claims. Claimants must now pay separate fees to issue their claim and have it heard. Fee levels differ according to the nature of the claim. It is possible for those with limited means to obtain a reduction or waiver of fees provided certain criteria are met.

The introduction of fees coincided with a steep decline in the number of cases received. In the year to June 2013, employment tribunals received on average just under 13,500 single cases (brought by one person) per quarter. Following the introduction of fees, the number of single cases averaged around 4,500 per quarter between October 2013 and June 2015, a decrease of 67%. The average number of multiple cases (brought by two or more people) received per quarter fell from just under 1,500 to fewer than 500, a 69% decrease.

Since their introduction, tribunal fees have been the subject of repeated judicial review proceedings both in England and Wales, and in Scotland. To date these challenges have been unsuccessful.

This note summarises the background to and operation of the fees system, provides a statistical analysis of its impact and discusses the legal challenges to the Fees Order.

Activity 4 - Judicial roles and appointments

This activity consolidated your knowledge of the roles of senior members of the judiciary and explored the ‘good character’ requirement of the judicial appointments process.

Part 1

The completed table should be as follows.

Position / Role
Lord Chief Justice / B. The most senior judge in England and Wales, the head of the judiciary, President of the Senior Courts of England and Wales and President of the Criminal Division of the Court of Appeal.
Lord Chancellor / G.Now occupied by the Minister of Justice. Prior to the Constitutional Reform Act 2005 reforms, this role included a number of judicial and other functions including head of the judiciary and speaker of the House of Lords. Most of these functions have now been removed in order to enhance the separation of powers. The role maintains some functions in relation to judicial appointments and constitutional affairs.
Master of the Rolls / E. The second most senior member of the judiciary, head of Civil Justice in England and Wales and President of the Civil Division of the Court of Appeal, as well as a judge in the Court of Appeal.
President of the Supreme Court / A.Heads the Supreme Court judiciary as its most senior member and sits as a Supreme Court Justice and on the Judicial Committee of the Privy Council. Has leadership, administrative and ambassadorial responsibilities in relation to the Supreme Court.
Lord/Lady Justice of Appeal / D. Ordinary member of the Court of Appeal.
Lords of Appeal in Ordinary / F. The ‘Law Lords’, judges who sat in the Appellate Committee of the House of Lords and the Privy Council, prior to the creation of the Supreme Court pursuant to the Constitutional Reform Act 2005.
Supreme Court Justice / C. Member of the Supreme Court.

These involved a discussion between students about what ‘good character’ should involve, and then a comparison of the students’ ideas with the real requirements of ‘good character’, which can be summarised as follows:

  • overriding need to maintain public confidence in standards of the judiciary
  • JAC to take into account whole picture and not exclude applicants based on trivial matters alone
  • the requirement to declare criminal convictions (other than motoring) depending on the number and type
  • financial matters such as insolvency, judgment debts, tax or VAT indiscretions
  • matters relating to professional conduct including negligence, complaints, disciplinary action
  • general provision requiring the disclosure of other matters that might be relevant to character, such as issues of controversy, the conduct of close relatives or business connections.

Activity 5 - The diversity of the judiciary and the fairness of the judicial appointments process

This activity took the form of a discussion.

Activity 6- Judicial independence

This activity was intended to reinforce your understanding of key concepts in relation to the role of the judiciary, deepen your appreciation of the principle of judicial independence and encourage analysis of the way the judicial role contributes to or detracts from independence.

The completed table should look something like the following.

Concept / Definition / Relationship to Judicial Independence
Separation of powers / The separation of powers is the principle that the executive, legislature and judiciary should be institutionally and functionally separate within a constitution. / This helps to ensure judicial independence because it prevents the executive or legislature from intervening in the role of the judiciary. For example, prior to the CRA 2005, the Lord Chancellor was part of the executive and had many judicial functions, including head of the judiciary. This has now been altered to enhance the separation of powers.
Parliamentary sovereignty / Parliamentary sovereignty means that there is no higher power than parliament to make and unmake laws. / This could potentially detract from judicial independence as in principle the judiciary is subordinate to the whim of Parliament. For example, the provision in the CRA 2005 that judicial independence must be respected could easily be repealed by a future parliament.
Declaratory theory of law / The declaratory theory of law states that judges only declare the law and do not create new laws. / This has a slightly less direct bearing on judicial independence. The judiciary can be seen as having a separate role, to apply the law which is made by Parliament, which enhances the separation of powers. However, if the judiciary does not have the power to ‘make’ law according to higher principles such as the rule of law, it may be at the whim of Parliament because of parliamentary sovereignty.
Judicial Deference / Judicial deference states that the judiciary should give due weight to the legitimacy and competence of parliament. / In some ways this enhances the separation of powers and therefore protects judicial independence by ensuring the distinct roles of the judiciary and parliament are maintained. However, too much deference results in judicial independence being compromised as the judiciary may be overridden by Parliament.

Activity 7 - Donoghue v Stevenson[1932] AC 562 (30 mins)

This activity took the form of a debate.

Activity 8 - The essentials of criminal and civil liability

This activity is designed to consolidate your knowledge and understanding of criminal and civil liability in Unit 14.

Term / Criminal or Civil liability or Both
Mens rea / Criminal
Proof on the balance of probabilities / Civil (however, excellent students might identify criminal law defences such as insanity where the balance of probabilities applies)
Intentional / Criminal (but, again intentionally committing a tort might be part of the evidence relating to proof of liability e.g. A owes a duty of care, intentionally breaches that duty of care and causes resultant and foreseeable damage = negligence)
Reckless / Criminal (but, as above for example in proving negligence if A owes a duty of care and recklessly breaches that duty of care and causes resultant and foreseeable damage = negligence)
Negligent / Both
Guilty / Criminal
Prosecution / Criminal

Activity 9 - Explaining the terms

This activity is designed to consolidate your knowledge and understanding of criminal and civil liability in Unit 14.

You may find the link to the Oxford Dictionary of Law helpful when you are explaining legal terms.

Term / Criminal or Civil liability or Both / Meaning
Mens rea / Criminal / The state of mind that the prosecution must prove a defendant to have had at the time of committing a crime in order to secure a conviction.
Proof on the balance of probabilities / Civil (however, excellent students might identify criminal law defences such as insanity where the balance of probabilities applies) / The degree of proof required for any fact in issue in litigation, which is established by assessing the evidence relevant to it.
Intentional / Criminal (but, again intentionally committing a tort might be part of the evidence relating to proof of liability e.g. A owes a duty of care, intentionally breaches that duty of care and causes resultant and foreseeable damage = negligence) / In the case of oblique intention, the defendant must foresee the circumstance or consequence at the highest level of probability that is humanly possible to determine. This has been set by the courts as foresight of a virtual certainty – something that is certain to occur unless something completely exceptional happens.
Reckless / Criminal (but, as above for example in proving negligence if A owes a duty of care and recklessly breaches that duty of care and causes resultant and foreseeable damage = negligence) / In the case of recklessness, on the other hand, the level of probability with which the circumstance or consequence must be foreseen is much lower: the defendant must foresee only the possibility that it will occur. As recklessness is a less serious form ofmens rea(which is not sufficient for serious crimes such as murder), the required level of probability of the foreseen circumstance or consequence is lower than it is for the more seriousmens reaform of oblique intention.
Negligent / Both / The defendant’s conduct has fallen short of the objective standard.
Guilty / Criminal / An admission in court by an accused person that s/he has committed the offence with which s/he is charged
Prosecution / Criminal / The pursuit of legal proceedings in a criminal context
Defendant / Both / A person against whom court proceedings are brought.
Claimant / Civil / An individual who brings the proceedings in a civil case.

Activity 10 - Civil and Criminal liability (10 mins)

This activity is designed to consolidate your knowledge and understanding of Unit 14.

(a)Dr Hall’s actions may give rise to civil liability if it can be shown that he was negligent in failing to take reasonable care of the patient.

(b)Dr Hall’s actions may give rise to both civil and criminal liability. He has operated on a patient when he knew that he was not fit to do so.

(c)Dr Hall’s actions are unlikely to give rise to any liability, unless he can be shown to have been negligent. He made a judgment that the potential benefits to be gained by Mrs Smith outweighed the inherent dangers of the procedures. Negligence does not demand perfection, only ‘reasonable care.’

(d)It is unlikely that Dr Hall’s action will give rise to liability. He took a calculated risk to rush the operation to minimise the danger of Mr Wood suffering a heart attack. This does not necessarily amount to the failure to show reasonable care.

(e)Dr Hall will not be liable for his involuntary actions. However, civil liability may arise if he was aware that he was at risk of suffering seizures whilst operating. He may be seen as failing to show reasonable care and so be negligent.

Activity 11 - Test for negligence- the reasonable person test

This activity consolidates your knowledge of Unit 14.

Part A

The courts use the reasonable person test to determine whether a defendant is negligent. The test is objective. To act as the reasonable person would have acted is not the same as acting in the same way as an average person. Traditionally, the law regarded the reasonable person as the ordinary, prudent person – ‘the man on the Clapham omnibus’ (Sir Richard Collins in McQuire v Western Morning News Co[1900–03] All ER Rep 673.