Stuart Bannerman

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 few.

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 work.

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 – 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.