Tribunal 'established by law'
The EctHR has held that the object of the term “established by law” in Article 6 of the Convention is to ensure “that the judicial organisation in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament”: The phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the composition of the bench in each case: Fatullayev v Azerbaijan [2010] ECHR 623.
Further guidance on the meaning of this term may
be had from the judgment of the Court of Appeal
in the case of Coppard v Customs and
Excise
[2003] EWCA Civ 511, where Sedley LJ, giving
the judgment of the Court of Appeal said,
‘There is no decision of either the Court or the
Commission which deals comprehensively with the
content of the expression "established by law".
But in Zand v Austria (1978) 15 DR 70 the
Commission, in debating the status of the
Austrian labour courts, which had been set up
only under elective ministerial powers, said (at
para. 69) that the object and purpose of the
provision was:
"That the judicial organisation
in a democratic society must not depend on the
discretion of the Executive, but that it should
be regulated by law emanating from
Parliament."
‘The Court has made it clear (see Sunday Times
v United Kingdom
(1979) 2 EHRR 245 that law declared by the
courts ranks for these purposes with that made by
Parliament. We do not consider, however, that
this passage in Zand (which s.2 of the
Human Rights Act requires us to take into
account) answers the question. First of all, it
is addressed to the issue then before the
Commission, which concerned the use of
ministerial powers to create courts – hence the
focus on the executive. Secondly, it seems to us
that independence from the executive is what the
word "independent" in Article 6(1) is principally
concerned with. Thirdly, and perhaps most
importantly, it is plain that much more than this
is involved in the concept of a tribunal
established by law. Among other things, the
purpose (especially when one remembers the period
of European history of which the Convention was
intended to mark a definitive end) is to ensure
that justice is administered by, and only by, the
prescribed exercise of the judicial power of the
state, not by ad hoc "people's courts" and the
like. Such a principle must be fundamental to any
concept of the rule of law. Implicit in it is
that the composition and authority of a court
must not be arbitrary.’
Categories: 5th edition, Chapter 9, updates