Stuart Bannerman took part in the workshadowing
scheme in September. Share his experience.
As those of us who attended the joint
CILEX/JAC workshops were told, there are a number of different
tribunals that will afford Chartered Legal Executives opportunities
for judicial appointment. These include not only the Employment
Tribunal and the Asylum & Immigration Tribunal but also less
well exercised tribunals, such as those for Education & Social
Care, Criminal Injuries, Charities and The Lands Tribunal to name a
Though these are clearly specialist areas, each one will cover a
wide range of points that can arise under the particular
legislation that they are responsible for. Perhaps not as diverse a
diet as the County Court, for example, but all require rigorous
application of the law to the facts of the case. Probably the main
difference is that one party is usually the Government, or other
State agency, which may be expected to appeal you if you get it
wrong - especially on a point of national significance. To my mind,
this greatly adds to the interest and attraction of tribunal
You can be forgiven for thinking that specialist subject
knowledge is necessary, but it isn’t. Helpful though that is, such
is the wide range of topics within a given subject, and the
narrowness of each point, on the job learning is a key element of
all tribunal work. That certainly appeals to me – which is just as
well, as I found out in September at the First Tier Tax Tribunal in
Bedford Square, London WC2. Formerly the Special Commissioners for
tax, this Tribunal now covers all direct and indirect tax appeals
in the UK.
The respondents to the appeal on which I sat were H.M. Revenue
& Customs – my previous employer, from whom I had retired in
2007 as a Technical Adviser on Inheritance Tax. But this appeal was
about National Insurance Contributions (of which I knew very
little) and stemmed from the changes brought in by the Pensions Act
2007. The very helpful tribunal staff had sent me HMRC’s skeleton
argument and arranged for me to meet the judge whom I would be
shadowing – Roger Berner, lately of Freshfields Bruckhaus Deringer,
appointed a full time judge at the start of the new Tribunal in
April 2009. Mr. Berner was most kind and patient towards me; he was
also interested in my thoughts on the case in hand, facilitating a
healthy debate on the legal issues arising on the appeal and the
potentially wider significance of the case. As the facts were not
in dispute, though, there would be no evidence – only legal
argument. But the 13 separate appellants were not legally
represented - unlike HMRC, of course, who had instructed Counsel.
As the legal issues were the same, the appeals were all heard at
the same time.
At this point I must digress to say what a wonder it is that
London manages to function at all, with its suburbs choked with
traffic that moves with the speed and grace of a slug. I had
travelled down from Nottingham at the weekend, stopping overnight
in Surrey, using bus and tube to get to the Tribunal in London.
Unlike my off-peak trip the day before, to meet Mr. Berner and to
go through the papers, my rush hour journey on the day of the
appeal took more than 2 hours! I might just as well have taken the
train from Nottingham to St. Pancras and walked in from there.
Future travel to London will need more prior analysis.
Most of the 13 appellants had elected one of their number to
address the Court, although some also turned up in person and chose
to say a bit for themselves as well. They were all polite and
appeared not at all fazed by the proceedings (no wigs or gowns
here!). With so many appellants and the relative informality there
was potential for things to lose shape - but Mr. Berner was always
alert and quick to ensure proper order. The fact that the
appellants were representing themselves did not disadvantage them,
however, as Mr. Berner’s pre-reading had identified the real issues
for this appeal. With well timed probing (of both sides’ arguments)
it was all over by 1 p.m. But it was not all over for the judge –
the appellants’ written submissions had to be read and much further
consideration required before his decision could be made and his
reserved judgment written.
I felt privileged to have been closely involved by the judge on
the day before the hearing, and to have sat with him on the bench,
on a case with potentially wider implications for the Government
(see Osborne and Ors. v HMRC on the Tribunal’s website –
www.tribunals.gov.uk). I was most struck by (and reminded of!) the
importance of statutory construction so succinctly relied upon in
the judgment – every word in a statute is there for a reason; the
lawyer’s job is to find it and use it. This is regular fare for
Treasury Counsel, and so too for all tribunal judges. Those who are
more familiar with common law rules may sometimes find the
processes of government a little frustrating, but the consistent
application of the law is all the more vital in this field. Our
democracy depends on it.
The experience was well worth it and it has certainly
strengthened my resolve to apply for judicial appointment when a
suitable vacancy arises. This has been an aspiration of mine since
leaving school at 16, but an impossible one for me and others like
me until now – thanks to ILEX. A little late for me, perhaps, but
progress is at last being made – and hopefully now with a bit more
speed and much more grace than that of London’s traffic.
Stuart Bannerman. F.Inst.L.Ex.
30 September 2009.