A Critical Analysis and Review of the Procedure and Substance of Appeal Rights to the First-tier Tribunal (General Regulatory Chamber) Charmaine Cole Professor Christopher Hodges Centre for Socio-Legal Studies, University of Oxford Forewords by Judge Alison McKenna, Chamber President Sir Ernest Ryder, Senior President of Tribunals July 2020 1 Forewords Foreword by Sir Ernest Ryder, Senior President of Tribunals It cannot be doubted that the First-tier Tribunal (General Regulatory Chamber) has an unstable way of working that is a consequence of the manner in which it has been given its functions over time. It has an increasing work load, and the peripatetic nature of the GRC means that there is a need to plan the deployment of its judges and members and the allocation of its highly specialist workload. This welcome Report is issued as a response to concerns raised by judges working within the system, who are coping with those ever increasing demands. It is essential that access to justice is deliverable efficiently and effectively by the Tribunal system. There is no room for the exclusion of any of our users who need that access. This Report shows that there is a significant lack of consistency of thought in the drafting of legislation which gives rise to appeal rights. It makes clear that there is a need for clarification and consistency in the regulatory regimes both as regards procedure and substance, but that simple solutions can be found. There is a need to improve the practice relating to how appeal rights are designed so that the jurisdictions exercised by the GRC can work from a coherent template. If the simplification suggested in this Report were implemented, there would be a considerable dividend in increasing the access to, and delivery of, justice in the GRC. Clarity would be increased and unnecessary costs would be reduced. The context is that there is already in place a reform programme which aims to modernise the justice system and make it fit for purpose. My Report of 29 January 2019 on The Modernisation of Tribunals 2018 sets out the strategy for the reform programme as it affects Tribunals. An implementation plan Innovation Plan for 2019-20 applies the aims, principles, design concepts and solutions identified in the strategy to the Tribunals and sets out plans for the next stage of reform. This Report is a further stage in what needs to be done in the GRC as an additional project. I strongly recommend that officials in Government and HMCTS work with the judiciary to re-consider how appeal rights are characterised and drafted. Working with the GRC would be an excellent first step. Those designing and writing legislation should take account of the template in the current Report so as to produce legislation that adequately, accurately and consistently clarifies the relevant appeal or review rights. I am very grateful to the CSLS in the University of Oxford for the time and specialist expertise they have applied to the task of examining with the judiciary a particular problem. This is a template for future partnership working between the academy and the judiciary. Sir Ernest Ryder, TD, PC, DL, Senior President of Tribunals, Royal Courts of Justice, Strand, London WC2A 2LL 2 Foreword by Judge Alison McKenna, Chamber President First-tier Tribunal (General Regulatory Chamber). From my vantage point in the General Regulatory Chamber, I enjoy a unique viewpoint in respect of regulatory appeals. I often wonder if I am the only person who can see that the panoply of modern civil regulators from whom we hear appeals have many powers in common, yet exercise them in different ways, seemingly unaware of each other. Having sat in the GRC since its inception in 2009, I have also seen exponential growth in the number, range and complexity of appeals. I am frequently notified of newly-created appeal rights, yet the drafters of statutory instruments do not seem to have learned the lessons hard- won from satellite litigation in other areas. Regulatory appeals can have profound consequences for regulators, appellants, and the public at large. Who may and may not practise a profession? Who gains or loses accredited status? When is a regulated entity required to supply information to its regulator? The rule of law requires the powers of a regulator to be clear, and the regulated to understand their rights. Cohesion and consistency in the regulators' exercise of their powers and in the framework for appeals coming to the Chamber would, in my view, enhance public confidence in this important area. It has for some time seemed to me that a review of the regulatory appeals landscape would be beneficial. A fortuitous meeting with Professor Hodges provided an opportunity for me to discuss the Chamber's work with Charmaine Cole. I am greatly indebted to them both for this comprehensive review of the General Regulatory Chamber's work and I commend it to policy- makers, regulators and the regulated alike. Judge Alison McKenna Chamber President (General Regulatory Chamber) The Law Courts Winchester SO23 9EL 3 Executive Summary Recommendations based on our research of the legislation under which appeals may be made to the First-tier Tribunal (General Regulatory Chamber): Use the attached check list to ensure all relevant aspects of the appeal process have been considered when drafting any new legislation Introduce amendments to existing legislation, in order to form existing rights into a more coherent framework Consider the arrangements for co-ordination between Regulators, Ombudsmen, Tribunals, and other bodies with similar jurisdiction in any particular field. Introduction There is a growing list of UK bodies – somewhere upward of 900 - that exercise regulatory, sometimes even quasi-judicial, functions in England and Wales, from local authorities and professional associations to non-ministerial government regulators and executive non- departmental public bodies such as the Gambling Commission.1 Increasingly the route for appealing a particular action, decision or indeed omission, from one of these regulatory bodies is to a First-tier Tribunal, and unless there is a specialised tribunal such as for tax or property, then jurisdiction for such appeals is conferred on the peripatetic General Regulatory Chamber (“GRC”) whose functions were established by, and under, the Tribunal, Courts and Enforcement Act 2007 (“the TCEA”) and which comes under the judicial leadership of the Senior President of Tribunals. At present at least sixteen different jurisdictions sit in the GRC, which consequently results in it being required to consider appeals that encompass diverse areas of critical and complex law such as charity, environmental, food safety and transport. In its first year, namely the second half of 2008, the GRC heard just 28 appeal cases, but the growth rate since then has been exponential. Ten years on, i.e. 1 April 2018 to 31March 2019, and 1,888 appeals were heard by panels in the GRC, sitting at HMCTS venues throughout England and Wales. Thus, the case load, as well as the range of jurisdiction for this Chamber is increasing phenomenally. Judge McKenna, Chamber President of the GRC, writing in the 2019 Annual Reports noted: “The Chamber’s workload continues to rise, with notable increases in receipts in the Information Rights, Pensions and Transport sectors.”2 In 2019 it acquired a novel jurisdiction in relation to 1 Parliamentary Affairs, Volume 44, Issue 4, October 1991, 505, 520, available at: https://doi.org/10.1093/oxfordjournals.pa.a052321. For a list of regulatory bodies see: https://www.gov.uk/government/organisations 2 Senior President of Tribunals Annual Report 2019, available at: https://www.judiciary.uk/wp- content/uploads/2019/10/6.5845_The-Senior-President-of-Tribunals-Annual-Report-2019_Print_NoCrops.pdf 4 appeals brought under the Ivory Act 2018 and preparations are underway for a seismic swell of cases as more appeal rights are due to come to the GRC as a result of the UK’s withdrawal from the European Union.3 The varied regulatory regimes responsible for the appeal rights have created an appeal system which lacks coherence, occasionally leading to uncertainty and satellite litigation. Such a confusion of different procedures is an impediment to the delivery of justice and a threat to the rule of law because the powers of the state and the rights of the citizen must be clear. Delivery of justice would be improved if these impediments were removed. It follows, a priori, that the solution may lie simply with clearer and more consistent drafting of the relevant legal provisions, drawing on the experience of twelve years’ worth of GRC appeal cases. With this in mind, we were asked to investigate the appeal rights arising under the legislation that come within the jurisdiction of the GRC and, if possible, to produce a recommendation that would achieve a more coherent framework. The frequency with which appeal rights are conferred on the GRC was evident in the acquisition of several new appeal rights during our period of research, namely March to July 2020. From a review of these, it is clear they are mostly created in secondary legislation and bear little resemblance to each other. Research Project The objective of the research has been to critically evaluate all of the relevant legislation which give rise to appeal rights before the GRC in order to determine a universal approach that would result in a more economic and time efficient, as well as an easier to use, appeal system for people with legal disputes regarding the decision of a government Regulator, as well as the judges, non-legal members, barristers and others involved in the work and functions of the GRC. The ultimate outcome of the project has been to devise an elementary template that could inform the various Overseeing Government Departments (“OGDs”) in future drafting of such rights and to bring to attention some of the issues that arise with the publication of poorly planned legislation.