Tribunal Practice Statement v Act of Parliament- which has precedence

I have a case where the decision of the Tribunal was set aside because of an administrative irregularity under a Senior President’s Practice Statement .

It would appear that despite this Statement the actions of the Tribunal may have been within the law as set out in the Tribunals Courts and Enforcement Act 2007 and some fairly recent case law.

I have always assumed that an Act has precedence over everything except case law which interprets the Act but as I have started to prepare a response I have begun to doubt myself - any thoughts would be gratefully recieved.

An Act (i.e. primary legislation) is an expression of the will of Parliament and trumps everything else except other Acts.

Regulations, Orders and Practice Statements are secondary legislation. They are made by other people but always with authority granted by Parliament. Secondary legislation can never directly overwrite something in primary legislation unless the primary legislation says it can.

The Senior President of Tribunals is granted broad powers to regulate Tribunal procedure under the Tribunals, Courts and Enforcement Act. What he says in a Practice Statement is law and would have to be followed by Tribunals unless it actively contradicts something in primary legislation. This includes making practice statements which give parties less rights than they have under the TCEA.

As an example - the Valuation Tribunal for England sets a dress code for tribunal advocates. This is not something which primary legislation covers. If the VTE wants to eject an advocate for not following the dress code, it can do so freely - the advocate can’t complain that primary legislation never specifically permitted the rule. If the VTE ejected an advocate for breaching that rule by wearing a hijab, then the advocate might be able to establish a breach of primary legislation under the Equality Act 2010.

It seems very unlikely that something in the tribunal practice statement actively contradicts primary legislation.

Thanks Elliot, with regard to the point about the Practice Direction being in contradiction I would have though the same but the current matter does, to some degree, seem to show a conflict.

The Practice Statement of August2013 on the composition of Tribunals says that any Tribunal carrying out a WCA appeal must have a medical member.  On the other hand it was held in CE/5101/2014 by reference to Para15(6) of Sch 4 of the Tribunals Courts and Enforcement Act 2007 that an appeal concerning the WCA could make a valid decision without the presence of medical member provided the parties agreed to proceed on that basis.

On the face of it this would seem to qualify the Practice Statement to some degree and provided that all the criteria quoted in CE/5101/2014 are met could give a basis for nullifying it.

Looking back at it, I would probably retreat a bit from what I said yesterday - Tribunal Practice and Procedure points out that there is a difference between a practice direction which is made under statutory authority and a practice statement which isn’t. So strictly speaking, you could make the point that a practice statement isn’t law.

It is however, still a public statement from the highest authority when it comes to tribunal procedure and ought to be followed by tribunals generally. It’s also made in consequence of a specific order made on the Lord Chancellor’s authority which says that its down to the SPT to decide how tribunals should be comprised. That Order is law.

I think it would be difficult to argue that CE/5101/2014 was an intentional derogation from the practice statement. The issue is that there is nothing in that case which indicates that the judge was aware of the practice statement at all. I’m not sure the decision would have gone the same way if the claimant had been represented and had actually referred to the statement.

The problem is essentially that your judge has ignored an express order from their boss about how hearings are to be conducted - I think you will have a hard time suggesting that doing so was not an ‘administrative irregularity’ even though it may well be that it wasn’t an error of law.

Sorry for being so negative - I hope this might be helpful in developing your arguments at least. Certainly seems worth a shot.

As far as I can see the judge in the case was aware of the practice statement as he cited CDLA/1579/13.

The issue is one of informed consent from the parties, and in the presence of it, Para15(6) of Sch 4 of the Tribunals Courts and Enforcement Act 2007 can be operative, which would override the Practice Statement, which is in itself an interpretation of how secondary legislation should be administered