Judge Andrew Bano is the President of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal. He talks about a jurisdiction with a venerable history. The War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal came into existence on 3 November, 2008 under the Tribunals, Courts and Enforcement Act 2007.
It took over the functions of the Pensions Appeal Tribunals, which had existed in their modern form since 1919, dealing with claims for awards in respect of injuries resulting from military service. The special position of the Armed Forces – reflected in the Military Covenant which refers to the need to take care of armed forces personnel who voluntarily give up their human rights on active duty – meant that a separate Chamber was created in the new tribunals system to take over the jurisdiction of the Pensions Appeal Tribunal.
Andrew Bano believes that this arrangement has many advantages: “On the one hand, we are small enough to respond flexibly and effectively to the individual needs of our users; on the other, as a member of the much larger family of tribunals, we are in a position – without in any way compromising our identity or distinctive approach – to utilise the resources which are available within the new unified tribunal system.” “The make-up of the Chamber reflects the distinctive knowledge and skills needed in this jurisdiction,” says Andrew Bano.
Andrew is enthusiastic about the Chamber’s future. “I think we stand to gain tremendously from the tribunal reform programme. As an Upper Tribunal judge, I see my role as to provide judicial leadership, following the trend of recent appointments in the tribunal system.” Challenges for the future include maintaining the service expertise of the jurisdiction given that National Service ended in 1960, and Andrew sees the voluntary and reserve forces as a possible source of recruitment for the future.
Andrew Bano (male) English form of the Greek name Andreas, a short form of any of various compound names derived from andr- ‘man, warrior’. In the New Testament this is the name of the first disciple to be called by Jesus. After the Resurrection, St Andrew preached in Asia Minor and Greece. He is traditionally believed to have been crucified at Patras in Achaia. He was one of the most popular saints of the Middle Ages and was adopted as the patron of Scotland, Russia, and Greece. It has long been among the most popular boys’ names in the English-speaking world, especially in Scotland. Its popularity in England was further enhanced by its use as a British royal name for Prince Andrew (b. 1960), the Duke of York.
Andrew Bano, a Social Security and Child Support Commissioner, discusses bringing together tribunals into the judicial family in an article which originally appeared in ‘Benchmark’ the judicial newsletter. This article has been reproduced with kind permission of the author and Benchmark team.
The 2001 report of the review of tribunals chaired by Sir Andrew Leggatt, Tribunals for Users-One System, One Service, painted a bleak picture. It described a patchwork of tribunals administered by different government departments, each of which had been created by individual pieces of primary legislation, but without any overarching framework. To deal with this problem, the Leggatt report recommended that tribunals should be brought together into a single system, administered by a new Tribunals Service in what was then the Lord Chancellor’s Department.
Like many similar reports, the recommendations of the Leggatt inquiry might have gone unheeded, but for human rights concerns. The departments which administered tribunals were usually the rule making authority for their tribunals and paid the salaries and fees of the tribunal members. Since those departments were usually parties to the proceedings before the tribunal, it was evident that tribunals did not have the independence which was required by Article 6 of the European Convention on Human Rights.
In July 2004 the Government published its response to the Leggatt report as a White Paper called Transforming Public Service: Complaints, Redress and Tribunals. The White Paper proposed two new generic tribunals: a First-tier Tribunal and an Upper Tribunal, dealing mainly, but not exclusively, with appeals from the First-tier Tribunal. The Tribunals, Courts and Enforcement Act 2007, which received Royal Assent on 19th July this year, created the machinery for transferring existing tribunals into the new unified structure and for the organisation of the new tribunals into ‘chambers’, presided over by a Chamber President. The administration of the Asylum and Immigration Tribunal and of the employment tribunals and the Employment Appeal Tribunal has been transferred into the Tribunals Service, but those tribunals will maintain their existing jurisdictions, as separate ‘pillars’ of the new tribunal system.
However, the 2007 Act did much more than simply rationalise the structure of the tribunals. The new systems of judicial appointments and of judicial discipline created by the Constitutional Reform Act 2005 extended to tribunals, but the Act did not deal with other aspects of the position of tribunals in the new constitutional framework. That task was left to the 2007 Act, and as a result of the passing of that Act the constitutional position of the tribunals has for the first time been placed on a proper footing.
Since most of the work of tribunals is concerned with disputes between citizen and state, it is appropriate that section 1 of the 2007 Act provides for the independence of the tribunals judiciary. The Constitutional Reform Act 2005 imposes a duty on the Lord Chancellor and other Ministers of the Crown to uphold the continued independence of the judiciary, and section 1 of the 2007 Act amends the definition of “judiciary” in the 2005 Act to make it clear that the duty to uphold judicial independence extends to all the judiciary of tribunals administered by the Lord Chancellor.
The Act also implements the recommendation of the Leggatt inquiry for the creation of a new post of Senior President of Tribunals to provide unified leadership to the tribunals judiciary. Under section 47, there is a duty of cooperation between the Senior President, the Lord Chief Justices of England and Wales and Northern Ireland and the Lord President, in relation to judicial training, guidance and welfare in the tribunals. The Senior President has the same responsibilities for those matters in the tribunals, including the Asylum and Immigration Tribunal and the Employment Tribunals and Employment Appeal Tribunal, as the Lord Chief Justices have for other members of the judiciary in England and Wales, and Northern Ireland, and there is power for the Lord Chief Justice to delegate to the Senior President, in his capacity as Senior President, disciplinary functions in relation to the tribunals judiciary. In addition, the Senior President, who is required to have regard to certain statutory principles in exercising his functions, will have important powers and duties in relation to matters such as the assignment of judges and members to chambers, the making of practice directions, and the membership of Tribunal Procedure Committee (which he or his delegate is expected to chair). Lord Justice Carnwath is the Senior President of Tribunals and, acting in that capacity, has already provided the judicial leadership which was needed in the run-up to the passing of the Act.
The 2007 Act will do much to bring together what were formerly virtually entirely separate parts of the justice system. Members of the tribunals judiciary will be called “judges”, and will for the first time be led by a senior judge from within the ordinary courts. Monetary awards by tribunals will be directly enforceable. The Upper Tribunal will be a superior court of record, and the Act provides for it to be given powers to make judicial review orders in some types of case. Undoubtedly, the reforms will do much to overcome the sense of isolation felt by many members of the tribunals judiciary as a result of the fragmentation of the previous tribunal system.
But the movement will not be all one-way. The Act provides for the Senior President to make a request for judges of the Court of Appeal, High Court puisne judges, Circuit Judges, District Judges and District Judges (Magistrates’ Courts) to sit as members of either the First-tier tribunal or Upper Tribunal, providing an opportunity for those judges to participate in the work of the tribunals.
Andrew Bano further highlights the subject by adding-The Pensions Appeal Tribunal was a judicial tribunal in the United Kingdom which had jurisdiction to hear and decide appeals against decisions of the Secretary of State in connection with applications for war pensions by former members of the military services.The Tribunal was abolished in November 2008 and its functions transferred to the First-tier Tribunal.
The First-tier Tribunal is part of the administrative justice system of the United Kingdom. It was created in 2008 as part of a programme, set out in the Tribunals, Courts and Enforcement Act 2007, to rationalise the tribunal system, and has since taken on the functions of twenty previously existing tribunals. It is administered by Her Majesty’s Courts and Tribunals Service.
About andrew bano ; English form of the Greek name Andreas, a short form of any of various compound names derived from andr- ‘man, warrior’. In the New Testament this is the name of the first disciple to be called by Jesus. After the Resurrection, St Andrew preached in Asia Minor and Greece.
30 November 2010
UK case Study
The ECHR was incorporated into UK law by the Human Rights Act 1998. Section 6 provides:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) In this section “public authority” includes-
(a) a court or tribunal
(b) any person certain of whose functions are functions of a public nature…”
Civil Procedure Rules
In 1999 the courts in England and Wales adopted a new civil procedure code “with the overriding objective of enabling the court to deal with cases justly”. Rule 32.1, so far as relevant, provides:
“(1) The court may control the evidence by giving directions as to…
(a) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.”
J injured her right hand in an accident at work and claimed substantial compensation, on the basis that she had a continuing disability. Her employers admitted liability for the accident, but denied that J had the disability which she claimed. On two occasions a private detective employed by the employer’s insurers gained access to J’s house by pretending to be carrying out market research and filmed J without her knowledge. Having viewed the film, the employer’s medical expert concluded that J’s hand functioned entirely normally.
J’s employers applied to the court for permission to show the video at the hearing of the claim. Under English law the evidence would be admissible, but J submitted that the court should exercise its discretion to exclude the evidence under Rule 32.1 because of the unlawful entry into J’s home by the private detective and the infringement of her right to privacy under Article 8 of the ECHR.
6 September 2010
“Jurisdiction and Choice of Law in Economic Perspective“ by Andrew Bano.
Jurisdiction draws its substance from public international law, conflict of laws, constitutional law and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of its native society.
This article looks at choice of law rules from an economic perspective. The aim is to understand whether particular choices of law norms are wealth creating or wealth destroying and which of different norms should be preferred from this point of view. In this article Andrew Bano says, we do not try to understand the forces that generate and sustain particular choice of law rules. We restrict ourselves to an efficiency analysis of existing or proposed choice of law rules.
In the first part of the paper we argue that a free choice of law should be granted, whenever the choice causes no third party effects. We show that this criterion would extend free choice beyond the present scope. Free menu choice of law increases the wealth of the parties and creates institutional competition. It should be extended to fields of the law other than contract and tort law.
In the second part, Bano adds, we proceed with choice of law rules if the choice leads to positive or negative third party effects. To take care of these effects mandatory choice rules are sometimes but not always necessary. Methodologically choice of law rules should be market-mimicking rules, which reflect the interests of a grand coalition of the parties and all third parties affected by the choice rule.
In the third part of the paper, Bano suggests on discussing existing rules for the choice of tort law and refer to the discussion on a draft proposal for a European Council regulation of the law applicable to non-contractual obligations .
In the fourth part we discuss whether the German or the US approach of international comparative law is preferable from an economic perspective. The US approach gives more judicial discretion for the choice of law than the German approach. We argue that the choice of law rules should lead to precise and clear legal commands with escape clauses for the judiciary only in exceptional and obvious cases.
Andrew Bano points out, it is striking that choice of law scholars have paid virtually no attention on how choice of law rules affect individual behaviour. But any economic analysis has to focus on this aspect as otherwise the social consequences of legal norms remain unknown and consequently little can be said about whether the consequences of one rule are socially better than those of another rule .