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Creating a new public body
This is a single section from Chapter 20. Read the full chapter here.
Will the new public body be a tribunal?
Legislation should create a new tribunal only if 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 and ongoing costs. Creating a new tribunal should be a last resort and only be 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 if an independent assessment of facts and the application of specialist judgement or legal principles are required. Proceedings before a tribunal are generally more accessible and cost effective and allow greater scope for individual and public participation than proceedings before a court. 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) including a requirement to appoint 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); and
- a right of appeal to a court of general jurisdiction (see Chapter 28).
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 has produced detailed guidance for departments that are considering whether to create a new tribunal or improve an existing tribunal. The guidance provides the starting point for any department that is considering creating a new tribunal.
 Ministry of Justice Tribunal Guidance—Choosing the right decision-making body; Equipping tribunals to operate effectively (2015).