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Creating a new public body
This is a single section from Chapter 17. Read the full chapter here.
Will the new public body be a tribunal?
Legislation should only create a new tribunal where it is inappropriate to give new powers to an existing tribunal and no other court, tribunal, or other specialist body is better placed to exercise the power.
Creating new tribunals is complex and involves considerable start-up costs, and ongoing costs. Creating a new tribunal should be a last resort and only considered if no other viable option exists.
A tribunal may be the appropriate body to determine questions or disputes that affect people’s rights, particularly where an independent assessment of facts and the application of specialist judgement or legal principles are required. Proceedings before a tribunal are generally more accessible, cost effective and allow a greater scope for individual and public participation. The procedures adopted are generally flexible enough to enable non-legally qualified people to represent themselves.
Any new tribunal should have, as a minimum:
- actual and perceived independence from the executive, in particular any department or agency that is likely to appear before the tribunal or that conducts an investigatory function relevant to the matter before the tribunal;
- members appointed in accordance with set criteria (such as minimum qualifications) to include at least one legally qualified member;
- a clearly defined jurisdiction, usually in a specialist field;
- a procedure appropriate to the subject matter of the dispute and flexible enough to accommodate the range of parties likely to come before it;
- powers necessary to perform its function and ensure a fair hearing, such as powers to adjourn, summons witnesses, require the production of documents, administer oaths and affirmations, take sworn evidence, and in appropriate cases close proceedings and suppress evidence or identities (the powers given to inquiries under the Inquiries Act 2013 may provide a suitable precedent in this regard);
- a right of appeal to a court of general jurisdiction (see Chapter 25).
The Ministry of Justice should be consulted before any substantive policy work is undertaken to create a new tribunal or alter an existing tribunal’s powers or functions. The Ministry of Justice is currently producing detailed guidance on creating new tribunals. Once published, this guidance will provide the starting point for any department that is considering creating a new tribunal.