Tribunalisation and the Threat to Judicial Independence: the Tribunals Reforms Act 2021

In one line

Tribunalisation means the steady transfer of judicial work from the courts to tribunals staffed and controlled by the executive, and the objection to it is that the body which is the usual litigant also appoints, pays and removes the people who decide against it.

In the words a student can write in an exam: tribunalisation is the process by which adjudicatory functions formerly exercised by the ordinary courts have been transferred to specialised tribunals created by statute. It threatens the independence of the judiciary because the members of those tribunals are appointed, remunerated and removed by the executive, which is the standing respondent before them, because their tenure is short and re-appointment is possible, and because administrative members without judicial training may outnumber judicial members. The Supreme Court has responded through a line of decisions requiring that any tribunal substituted for a court be no less efficacious than the court it replaces, culminating in the striking down of provisions of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021, after which Parliament enacted the Tribunals Reforms Act 2021 containing substantially the same provisions.

What is objectionable, precisely

The objection is not that tribunals exist. It is structural, and it has five parts. Naming them separately is what distinguishes a good answer.

1. The appointing authority is the usual litigant. In a service tribunal, a tax tribunal or a regulatory appellate tribunal, the Union is a party in nearly every case, and the Union appoints the members.

2. Short tenure with re-appointment. A member appointed for four years who hopes to be re-appointed depends on the goodwill of the executive. Security of tenure is the oldest guarantee of judicial independence, and Articles 124 and 217 secure it for judges precisely because it cannot be left to the appointing power.

3. Administrative control of the tribunal. Where the tribunal's staff, budget and premises come from the ministry whose decisions it reviews, its independence is compromised even if its members are upright.

4. Composition. A bench in which administrative members can outnumber judicial members transfers judicial work to persons without judicial training.

5. The parent ministry. A tribunal attached to the ministry whose orders it hears appeals from is not seen to be independent, whatever the reality.

Behind all five stands Article 50, the Directive Principle that the State shall take steps to separate the judiciary from the executive in the public services: [Separation of Powers].

The line of cases

The Supreme Court has decided this question repeatedly. The 2021 decision describes itself as the seventh in a line beginning with the National Company Law Tribunal case. Three decisions carry the argument, and two of them are worked in the earlier chapters.