REVIEW OF TRIBUNALS

Consultation Paper

June 2000

•   Introduction
•   Terms of Reference
•   Scope
•   The Principles of the Review
•   The Review Process
•   How to Respond

Consultation Questions

A   Helping users through the system
B   An accessible system of tribunal justice
C   Preparing for the information society
D   A coherent system of tribunal justice
E   A well supported system
F   An effective framework for decision-making
G   Getting the right members
H   Proper training
I   Adding new jurisdictions
J   Testing how the system performs
K   The system and its costs
•   Annex A - Tribunals
•   Annex B - Other bodies

This consultation paper is also available here as a Word 6 document

Introduction

1.1 The current system of tribunals in the United Kingdom has developed as a pragmatic response to the widened role of the state and its agents in modern society. As the impact of those agents on the lives of the citizens of this country (and in some cases those not yet citizens) has increased, we have developed a large number of separate bodies to resolve a wide range of disputes that can arise when officials make decisions. The list of the bodies which may be affected by the review names 130(End note 1.). Each body deals with a separate area of law, usually with separate membership and separate administrative structures. This approach has obvious strengths. It enables each tribunal to develop procedures and practices which match the particular needs of its area of work, aiming above all for as much accessibility and informality as possible. There are, however, signs, noted most recently in the work of Sir Jeffery Bowman's review of the hearing of administrative cases in the High Court, (End note 2.) that the very complexity of the system (if indeed it amounts to a system at all), its diversity, and the separateness within it of most tribunals, may be creating problems for the user and an overall lack of coherence. The purpose of this review is to examine the strengths and weaknesses of the current system and, where relevant and appropriate, to make proposals for reform.

1.2 Unlike some reviews, we have not been asked to make detailed, costed proposals. This would not be realistic if we are to complete our work, as the Lord Chancellor has asked us to do, by 31 March 2001. We aim, however, to provide a framework for the strategic development of the British system of administrative justice.

Terms of Reference

2.1 Our terms of reference are to review the delivery of justice through tribunals, other than ordinary courts of law, constituted under an Act of Parliament by a Minister of the Crown or for the purposes of a Minister's functions; in resolving disputes, whether between citizens and the state, or between other parties, to ensure that:

There are fair, timely, proportionate and effective arrangements for handling those disputes, within an effective framework for decision-making which encourages the systematic development of the area of law concerned, and which forms a coherent structure, together with the superior courts, for the delivery of administrative justice;

The administrative and practical arrangements for supporting those decision-making procedures meet the requirements of the European Convention on Human Rights for independence and impartiality;

There are adequate arrangements for improving people's knowledge and understanding of their rights and responsibilities in relation to such disputes, and that tribunals and other bodies function in a way which makes those rights and responsibilities a reality;

The arrangements for the funding and management of tribunals and other bodies by Government departments are efficient, effective and economical; and pay due regard both to judicial independence, and to ministerial responsibility for the administration of public funds;

Performance standards for tribunals are coherent, consistent, and public; and effective measures for monitoring and enforcing those standards are established; and

Tribunals overall constitute a coherent structure for the delivery of administrative justice.

The review may examine, insofar as it considers it necessary, administrative and regulatory bodies which also decide disputes as part of their functions.

Scope

3.1 The Franks Committee (End note 3.) reported 43 years ago. Since then, society has grown far more complex. The functions of the state (and its agents) in respect of which Parliament has provided independent appeals or adjudication have proliferated. There are now three times as many tribunals as in 1957. In addition, a range of other statutory, administrative or independent bodies also decides disputes.

3.2 Annex A lists:

tribunals falling within the jurisdiction of the Council on Tribunals (the statutory body established as a result of the Franks Committee's recommendations, whose remit is determined by Schedule 1 of the Tribunals and Inquiries Act 1992);

other principal tribunals; and

tribunals set up but not yet fully implemented by recent legislation, or which have been proposed in Bills currently before Parliament.

3.3 Annex B gives a provisional list of other bodies which may be affected by the work of the review. These are bodies which take independently decide disputes, often within the framework of the European Convention on Human Rights; are established by law; and are in the public sector, or involve state-sponsored regulation of professional services (whether or not state funded in whole or in part). At this stage, it is by no means certain that the review has identified all the bodies that may be affected by its work, and if its view changes it will notify the relevant bodies accordingly.

3.4 The review team would welcome suggestions for other bodies which may fall within its terms of reference.

3.5 While the bodies falling within Annex A will be the main focus of the review, those listed in Annex B are also within its scope. The review will not, however, deal with private sector bodies and schemes.

The Principles Of The Review

• Fairness

4.1 For the Franks Committee, the principal characteristics of tribunals and tribunal procedures were openness, fairness and impartiality. Although the number and range of tribunals have increased greatly, their purpose has not. They exist to provide an effective - and usable - system of redress, mainly between the citizen and the state. The overarching requirement of the tribunal system, therefore, is that it should be seen to be fair. The other Franks characteristics of openness and impartiality can be regarded as component parts of that requirement.

• Benchmarks

4.2 We propose a series of benchmarks against which the achievement of fairness may be tested. These should include:

independence from sponsoring departments;

an accessible and supportive system;

tribunals exercising a jurisdiction suitable for the area that each is intended to cover;

simple procedures;

effective decision-making;

ensuring that the decision-taking process is suitable for the type of dispute;

providing proportionate remedies;

speed in reaching finality;

authority and expertise appropriate for their task; and

cost-effectiveness.

4.3 We would welcome views on the appropriateness of these benchmarks, and whether there are others which should be added to the list.

• Human Rights and European Law

4.4 Those benchmarks will have to be read in the light of the requirements of the European Convention on Human Rights. The Human Rights Act 1998 is to implemented in England and Wales on 2 October 2000. In addition, there may be principles of European law which will impact on the work of particular tribunal systems.

• Devolution

4.5 Among the greatest changes since Franks has been the establishment of the Scottish Parliament and Welsh Assembly. The review must therefore look at the consequences of devolution for the administrative justice system. Any proposals affecting tribunals which have jurisdictions covering the whole of the United Kingdom or Great Britain must take account of the way in which any changes to such tribunals and their procedures may be effected within the new constitutional arrangements. This will involve close consultation with each of the relevant devolved administrations. The review will also need to discuss with the Welsh Assembly its thinking on developments for tribunals which sit in England and Wales. We will also seek to keep abreast of any developments in tribunals peculiar to Scotland, although those are not directly a matter for the review.

• Modernising Government

4.6 The review is aware of the Government's proposals for modernising how it works (End note 4.), and ensuring that the services it delivers are determined by the needs of the customer, not the provider. This review is part of that process. When things go wrong, effective complaints and appeal procedures are needed to put them right. They should not be seen in isolation. The law which is administered both by departments and tribunals should be clear and certain. So should the various processes through which departments give effect to the law through administrative decision-making. Tribunal systems are uniquely placed not only to identify possible systemic problems in the law or administrative decision-making, but also to suggest improvements. For example, they are able to identify cases, or classes of case, in which departments are unjustifiably taking or contesting appeals. The review will give particular attention to this aspect of the relationship between departments and their appeal systems.

Review Process

• The Consultation

5.1 This consultation paper is being sent to a large number of bodies and individuals whom we expect will have particular matters they would wish to bring to the attention of the review to assist us in our work. We hope to hear from as many consultees as possible. Nevertheless, we are conscious that, however good our initial intelligence may be, there will be those who have important points to make with whom we have not been able to make initial contact. We stress that consultation is not only by invitation. The review team would be happy to know of others to whom a copy might usefully be sent. We would also be pleased for those who have received one to pass copies on to others with whom we have not made initial contact.

5.2 It may be useful to some consultees to know who else has been sent a copy of this consultation document. The consultation list can be found on the review's website at www.tribunals-review.org.uk.

• Areas for consideration

5.3 The review team has given preliminary consideration to the areas it will need to consider to determine whether the benchmarks against which the administrative justice system should be measured are being achieved. They are:

helping users through the system;

an accessible system of tribunal justice;

preparing for the information society;

a coherent system of tribunal justice;

a well supported system;

a manageable judicial system;

getting the right members;

proper training;

adding new jurisdictions; and

testing how the system performs

5.4 A number of questions on each of these areas follows in separate sections.

5.5 The review has also identified areas on which it seeks information from Government departments only. At section K, which follows the more general questions, there is a list of more detailed questions, although departments may also be expected to submit answers on the more general issues as well.

5.6 In addition to the specific questions, the review welcomes views on:

aspects of the current system which can be improved to meet users' requirements better;

areas of good practice which might be applied more generally;

aspects of good practice in foreign jurisdictions, the adaptation of which should be considered for the UK;

devolution issues in any part of the UK; and

other issues which should be considered.

• Selective Responses

5.7 Each area raises a large number of individual questions. Consultees should not feel they must answer all the questions. Rather, we encourage respondents to limit any response to those areas in which they feel they have most to contribute. Such focussed responses are particularly welcome. Thus, consultees should feel no obligation to cover all topics, or all questions within a topic. Indeed, the review expects that very few will wish to cover the full range. It would, however, assist analysis if respondents could give the question number(s) with which they are dealing.

5.8 The review would be especially pleased to learn about the experience of those who have used a tribunal and to receive suggestions about views on how the current arrangements can be improved.

5.9 The review cannot, however, deal with any individual issue or complaint relating to any specific tribunal.

• Research

5.10 In the time, and with the resources available to the review, it will not be possible to promote a substantial programme of new research. The review is most anxious to learn as much as it can about the impact of tribunals on users, and hopes to commission some research on this issue.

5.11 The review would also be most grateful for any assistance that researchers currently examining aspects of the administrative justice system might be able to offer. If relevant work-in-progress were to be submitted, this would clearly fall outside the normal principle that material sent to the review would eventually be placed in the public domain.

• Seminars and other public meetings

5.12 It is unlikely that, in the time available, the review will be able to hold general public hearings on the issues raised by the review. We are, however, considering a number of ways in which the consultation responses can be tested and discussed with users, their advisors, and tribunal members and staff. This is likely to include a series of meetings to be held in Autumn 2000.

• Overseas contributions

5.13 The review is aware that many of the issues which we will need to address in the context of the UK have been the subject of inquiry and reform in other jurisdictions. We would be very grateful to receive contributions from overseas about significant developments in other administrative justice systems which might be relevant to our thinking about developments in the UK.

How to Respond

• Submissions

6.1 We would be grateful to have responses no later than Friday 15 September 2000. We would welcome earlier responses if that were at all possible.

6.2 Hard copy submissions should be sent to:
Frances Mascoll
Review of Tribunals,
Room 3.S.6,
Southside,
105 Victoria Street,
London SW1E 6QT.

Tel: 020-7210 1217
Fax: 020-7210 1219.

6.3 E-mail submissions should be sent to her at: fmascoll@lcdhq.gsi.gov.uk.

6.4 Paper copies of this paper are available free of charge from Frances Mascoll at the above address.

• Publication of submissions

6.5 The responses to the consultation exercise will be analysed and summarised, and the resulting document widely circulated. Although we do not at this stage have plans to publish actual responses, we would expect to make them available on request. Respondents should indicate if they wish some or all of their response to be confidential to the review. Researchers who are willing to share "work-in-progress" with the review are particularly asked to identify such material so that it is not put prematurely into the public domain.

CONSULTATION QUESTIONS

A Helping users through the system

Most tribunals aim to be accessible to users appearing on their own, without legal or other support. This section asks for views on what kind of information, and what other services are needed to achieve that aim better, and - if there are areas where it is unrealistic - what other forms of help are needed.

Information

A.1 What information do users need to decide whether to bring a case to a tribunal, how to gather their evidence, and how to present it effectively? (The review would particularly welcome views from users on good practice.)

A.2 How should that information and advice be provided: by original decision-makers; by tribunal staff; written and Information and Communication Technologies (ICT) material; or by advisory services?

A.3 What arrangements should be made to ensure that good quality information and advice reaches the right sectors of our diverse community?

Practical help

A.4 What other advice and support do users need if they are to prepare or present their own cases effectively?

A.5 Are there kinds of cases which users cannot be expected to prepare or present unassisted? What are they, and what are the problems they face when dealing with cases themselves?

A.6 What kinds of advice and assistance should there be to help with these? Should there be limitations on the parties' right to advice or representation, for example to keep procedures informal?

A.7 Since Franks, the general rule has been that tribunals should not normally have the power to award parties the costs of legal representation (except possibly when the other side has behaved unreasonably, or abused the tribunal's processes). Does this remain an effective way of controlling the use of legal representatives? Are there tribunals, or areas of work, where it is no longer appropriate, or has created problems?

A.8 What information is available about how much it costs to bring or defend a case, and any costs of complying with the requirements of the tribunal's system or procedures?

B An accessible system of tribunal justice

This section asks for views, based on experience of the current systems, on the extent to which it is possible for users to act for themselves in tribunals, any factors which may be making that increasingly difficult, and how - where that is appropriate - access can be maintained and widened.

Procedures

B.1 Are there tribunals in which it has now become difficult for the parties to act without legal assistance or representation? (This may have happened for a variety of reasons. It may not necessarily be a bad thing.)

B.2 Where there are problems, can the process be managed or reversed?

B.3 How can practice and procedure be improved to make it easier for users to prepare and present their own cases? (The review would particularly welcome examples from users of good practice.)

B.4 Are there barriers, for some users or for all, which make it difficult for them to attend or to participate in hearings, where that is appropriate?

B.5 What are the respective advantages and disadvantages of oral and written procedures?

B.6 Are there particular or general pressures pointing towards greater formalisation? How can they be managed and/or reduced?

B.7 Can the structure or procedures of tribunals be simplified, for example by separating cases which turn on facts from those with a significant element of law?

B.8 Do tribunals handle cases quickly enough? Do they have the procedural tools, and any necessary sanctions, to manage cases and hearings effectively and quickly, having regard to the nature of the work?

B.9 Does the objective of a tribunal system, simple and informal enough for the citizen to be able to use it without assistance, remain realistic?

Service provision

B.10 Are there other ways in which convenience and accessibility to the full range of tribunal users can be increased?

B.11 Are there problems for:

access;

the quality of the judicial process;

the support services; or

speed

in the way hearings are currently set up and administered?

B.12 Are there any circumstances where access to tribunals should not be free?

B.13 Where access to a tribunal is not currently free, how does the imposition of a fee affect the user's rights and choices in bringing a case?

C Preparing for the information society

ICT (Information and Communication Technology) is increasingly transforming many aspects of society. This section asks for views on how the service provided by tribunals might be affected by developments in ICT, and how services might be improved by more effective use of ICT.

C.1 What are examples of good practice in the use of ICT in particular tribunals?

C.2 To what extent are users and the advice services already taking advantage of ICT?

C.3 What are the implications of the Modernising Government initiative for the future of the tribunal systems?

C.4 In what ways can ICT improve, streamline and render more efficient the current tribunal system (for example, better document management systems)?

C.5 In what ways can ICT create new ways of administering and providing tribunal services (for example, using the Internet)?

C.6 What fundamental challenges for the provision of tribunal services are presented by the emergence of the Internet-based information society (for example, new types of problem or dispute and new ways of individuals interacting with the state)?

C.7 How can these developments be delivered for those who do not have direct access to ICT?

D A coherent system of tribunal justice

There are some suggestions that the past growth in the number of tribunals has resulted in a system so complicated that it is becoming difficult to use. This section asks for views on the extent to which that has happened, whether a simpler system is possible, and how it might be achieved.

D.1 Does a separate system of tribunals, distinct from the courts of law, continue to be an appropriate way of dealing with at least some cases? What are its advantages and disadvantages? What sort of cases does it handle best?

D.2 Could some of the cases currently decided by tribunals be more effectively handled elsewhere (in the ordinary courts, by a different tribunal or an ombudsman, by alternative dispute resolution, etc)?

D.3 Are there areas of law where citizens have no, or insufficient, right of appeal, for which recourse to a tribunal would be appropriate?

D.4 Could greater coherence be given to the current arrangements by amalgamating or grouping tribunals?

D.5 What kinds of grouping, for example by:

area of law;

nature of dispute - for example disputes between individuals; appeals against state decisions or actions; licensing; regulation of goods or services;

first instance and appellate tribunals; or

size of caseload

might be adopted?

D.6 What would be the advantages, and disadvantages, of such groupings?

D.7 Are there factors which would inhibit moves to a very simple, or even single, structure?

E A WELL SUPPORTED SYSTEM

There is currently a wide variety of ways in which tribunal systems are provided with administrative support. This section asks for views on whether those ways match up to what is needed of an independent system, and how they might be improved.

E.1 Do the current systems of administrative support meet the needs of tribunals and users?

E.2 What are the advantages and disadvantages of government departments with policy responsibilities also providing administrative support and funding to the relevant tribunals?

E.3 Are tribunals seen to be clearly independent and impartial? If greater independence is needed, what is needed to achieve it?

E.4 What mechanisms are necessary to ensure that the tribunal system works effectively to identify possible problems (and possible solutions) in:

the substantive law;

departments' systems for decision-making;

how decisions are notified to customers; or

other departmental systems for delivering services?

E.5 What are the respective responsibilities of tribunal members and administrative managers within a tribunal system? Can the allocation be improved?

E.6 Are there sufficient career and development opportunities in the area of tribunal work to ensure an adequate supply of properly trained staff?

F AN EFFECTIVE FRAMEWORK FOR DECISION-MAKING

This section asks for views on how the organisation of the tribunal system can be improved to encourage better case-management, consistent decision-making, and the coherent development of the law. It also seeks views on how to ensure that there is an appropriate range of proportionate procedures and remedies, for the right range of cases.

Structures

F.1 What facilities do the tribunal members need to ensure that the system works effectively, that cases are effectively allocated within a tribunal, and there is sound and consistent decision-making?

F.2 What are the principles which should help to determine whether particular tribunal systems should have a further second-tier appeal stage attached to them? When, if at all, should appeals go straight to the courts of law? Should any rights of appeal be limited to points of law?

F.3 Does the current:

composition (including qualification and training);

organisation;

procedure; or

any other factor

make it difficult for some tribunals, or all, to make decisions which carry the necessary authority?

Jurisdiction and remedies

F.4 Are there particular tribunals whose jurisdiction is too wide, or too narrow?

F.5 Are there areas where tribunals are undesirably limited by the remedies available to them?

F.6 Could the range of remedies available to those who have a dispute to be resolved usefully be widened e.g. to allow tribunals to refer cases to mediation, or to supervise negotiated settlements, or to embrace other forms of Alternative Dispute Resolution (ADR)?

F.7 Like other parts of the civil justice system, tribunals have to deal with many different kinds of dispute. Do their :

jurisdiction and remedies;

procedures;

management tools and processes

fully reflect that? If not, how can they be improved?

The development of the law

F.8 Are the jurisdictional boundaries between the tribunal system and the ordinary and higher courts as clear as they should be?

F.9 Do they provide a practical, proportionate and sufficiently expert mechanism for the coherent development of the law?

F.10 In particular, can the appeal routes from tribunals be rationalised?

G GETTING THE RIGHT MEMBERS

This section asks for views on whether the current appointment procedures produce enough tribunal members of the right kind.

G.1 Do the current arrangements ensure an adequate supply of:

legally qualified tribunal members; and

non-lawyers in a tribunal;

with the right capacities and skills for the tasks; and

adequately representative of the community?

G.2 If not, what changes in any of:

responsibilities for appointment;

recruitment procedures;

career structure for members;

qualifications for appointment; and

any other matters

would improve on the current position?

G.3 In particular, what is the distinctive role of non-lawyers - both those with other professional qualifications and other lay persons - in the work of tribunals? How is that role to be specified, in appointment criteria and elsewhere? Do non-lawyers need distinctive appointment procedures?

H PROPER TRAINING

This section asks for views on whether training for tribunal members of all kinds can be improved.

H.1 What sorts of training do tribunal members need to act effectively as chairmen and chairwomen or as members in their various roles?

H.2 Who should be responsible for:

setting broad policy and approaches for training;

determining the detailed content of training courses; and

delivering training?

H.3 How should the effectiveness and value for money of the training that is provided be tested?

H.4 What training is needed for tribunal support staff? How is that best determined and delivered?

I ADDING NEW JURISDICTIONS

This section asks for views on what arrangements should operate when deciding to add a new tribunal, or a new area of work to existing tribunals.

I.1 What principles should determine whether a specific right of appeal is required for any particular class of administrative decisions? Are there areas, or types of case where judicial review will be preferable?

I.2 What principles should determine whether any such appeal is to be heard by the ordinary courts, or by a tribunal? And by an existing or a new tribunal?

I.3 What arrangements are needed to ensure that any new appeal right is heard:

by tribunal members of the right kind and level of expertise;

with appropriate procedures and information systems;

with effective administrative arrangements; and

with an appropriate system of further appeal, if necessary?

J TESTING HOW THE SYSTEM PERFORMS

This section asks for views on whether there are effective arrangements for explaining to users what they can expect from the tribunal system, setting performance standards and ensuring that those expectations and standards are met.

J.1 What arrangements should there be for setting standards of customer service, and of user satisfaction, for tribunal systems?

J.2 What arrangements should there be for ensuring that these standards are met, and reporting on performance?

J.3 Should there be arrangements for standards of consistency in the decision-making of tribunals?

J.4 What arrangements should there be for ensuring that those standards are met, and reporting on performance?

J.5 What other arrangements or institutions are needed to help Government and users get a clear picture of how well the system is working and how it should be developed or reformed?

K the system and its costs
(QUESTIONS FOR GOVERNMENT DEPARTMENTS)

Government departments are particularly asked to provide the following information or material in relation to each tribunal for which they are responsible:

K.1 The name of the tribunal, with a brief description of its business.

K.2 The number of cases dealt with each year, where appropriate by main work categories listing: cases received; total disposals in the year, separating those in which disputes are resolved, and those otherwise disposed of; and cases pending at the end of the year.

K.3 The time taken to deal with a case, from first receipt to final disposal, and the time taken to implement the tribunal's decision (statutory time limits for particular stages should be specified).

K.4 For appeal tribunals, the percentage of appeals which succeed.

K.5 The managerial structures for the tribunal administration (with any specific legislative provision, and copies of e.g. agency framework documents, published objectives and targets).

K.6 How tribunal outcomes are enabled to feed back into systems for taking and improving departmental/agency decision-making. What are the arrangements for using the tribunal to identify and correct any problems with the substantive law, or departmental policies and service delivery?

K.7 The nature and scope of current ICT systems, and any major plans for improvement.

K.8 How the tribunal(s) fit in the department's Modernising Government strategy.

K.9 The numbers and grades of staff engaged on providing administrative support to the tribunal.

K.10 Copies of any published charter or customer services standards.

K.11 Copies of information and guidance for users on the tribunal and how to use it.

K.12 Performance and user satisfaction measures in the tribunal.

K.13 Arrangements for assistance for users, legal or otherwise (including legal aid).

K.14 Arrangements for providing hearings (including their locations).

K.15 The extent to which the tribunal's practices and procedures have been reviewed for conformity to ECHR requirements, and any particular concerns which have been identified.

K.16 The arrangements for appointing tribunal members, both legally and otherwise qualified.

K.17 The number of members of the tribunal, by category of appointment and whether full-time or part-time (in the latter case, with an average number of sitting days each year); and rates of pay.

K.18 The arrangements for training tribunal members, and the approach to and content of training.

K.19 The arrangements for staff training.

K.20 The resources expended on:

tribunal member salaries and expenses;

staff salaries and expenses;

system administration;

accommodation; and

tribunal member training; and

staff training.

Endnotes:

See Annex A and Annex B
Review of the Crown Office List : a report to the Lord Chancellor, Lord Chancellor's Department; March 2000
Report of the Committee on administrative tribunals and inquiries; HMSO; Cmnd.218; July 1957
Modernising Government; 1999; Cm 4310

Back to the consultation Page

3.1	The Franks Committee (End note 3.) reported 43 years ago. Since then, society has grown far more complex. The functions of the state (and its agents) in respect of which Parliament has provided independent appeals or adjudication have proliferated. There are now three times as many tribunals as in 1957. In addition, a range of other statutory, administrative or independent bodies also decides disputes.
3.2	Annex A lists: tribunals falling within the jurisdiction of the Council on Tribunals (the statutory body established as a result of the Franks Committee's recommendations, whose remit is determined by Schedule 1 of the Tribunals and Inquiries Act 1992); other principal tribunals; and tribunals set up but not yet fully implemented by recent legislation, or which have been proposed in Bills currently before Parliament.
3.3	Annex B gives a provisional list of other bodies which may be affected by the work of the review. These are bodies which take independently decide disputes, often within the framework of the European Convention on Human Rights; are established by law; and are in the public sector, or involve state-sponsored regulation of professional services (whether or not state funded in whole or in part). At this stage, it is by no means certain that the review has identified all the bodies that may be affected by its work, and if its view changes it will notify the relevant bodies accordingly.
3.4	The review team would welcome suggestions for other bodies which may fall within its terms of reference.
3.5	While the bodies falling within Annex A will be the main focus of the review, those listed in Annex B are also within its scope. The review will not, however, deal with private sector bodies and schemes.

• Fairness
4.1	For the Franks Committee, the principal characteristics of tribunals and tribunal procedures were openness, fairness and impartiality. Although the number and range of tribunals have increased greatly, their purpose has not. They exist to provide an effective - and usable - system of redress, mainly between the citizen and the state. The overarching requirement of the tribunal system, therefore, is that it should be seen to be fair. The other Franks characteristics of openness and impartiality can be regarded as component parts of that requirement.
• Benchmarks
4.2	We propose a series of benchmarks against which the achievement of fairness may be tested. These should include: independence from sponsoring departments; an accessible and supportive system; tribunals exercising a jurisdiction suitable for the area that each is intended to cover; simple procedures; effective decision-making; ensuring that the decision-taking process is suitable for the type of dispute; providing proportionate remedies; speed in reaching finality; authority and expertise appropriate for their task; and cost-effectiveness.
4.3	We would welcome views on the appropriateness of these benchmarks, and whether there are others which should be added to the list.
• Human Rights and European Law
4.4	Those benchmarks will have to be read in the light of the requirements of the European Convention on Human Rights. The Human Rights Act 1998 is to implemented in England and Wales on 2 October 2000. In addition, there may be principles of European law which will impact on the work of particular tribunal systems.
• Devolution
4.5	Among the greatest changes since Franks has been the establishment of the Scottish Parliament and Welsh Assembly. The review must therefore look at the consequences of devolution for the administrative justice system. Any proposals affecting tribunals which have jurisdictions covering the whole of the United Kingdom or Great Britain must take account of the way in which any changes to such tribunals and their procedures may be effected within the new constitutional arrangements. This will involve close consultation with each of the relevant devolved administrations. The review will also need to discuss with the Welsh Assembly its thinking on developments for tribunals which sit in England and Wales. We will also seek to keep abreast of any developments in tribunals peculiar to Scotland, although those are not directly a matter for the review.
• Modernising Government
4.6	The review is aware of the Government's proposals for modernising how it works (End note 4.), and ensuring that the services it delivers are determined by the needs of the customer, not the provider. This review is part of that process. When things go wrong, effective complaints and appeal procedures are needed to put them right. They should not be seen in isolation. The law which is administered both by departments and tribunals should be clear and certain. So should the various processes through which departments give effect to the law through administrative decision-making. Tribunal systems are uniquely placed not only to identify possible systemic problems in the law or administrative decision-making, but also to suggest improvements. For example, they are able to identify cases, or classes of case, in which departments are unjustifiably taking or contesting appeals. The review will give particular attention to this aspect of the relationship between departments and their appeal systems.

• The Consultation
5.1	This consultation paper is being sent to a large number of bodies and individuals whom we expect will have particular matters they would wish to bring to the attention of the review to assist us in our work. We hope to hear from as many consultees as possible. Nevertheless, we are conscious that, however good our initial intelligence may be, there will be those who have important points to make with whom we have not been able to make initial contact. We stress that consultation is not only by invitation. The review team would be happy to know of others to whom a copy might usefully be sent. We would also be pleased for those who have received one to pass copies on to others with whom we have not made initial contact.
5.2	It may be useful to some consultees to know who else has been sent a copy of this consultation document. The consultation list can be found on the review's website at www.tribunals-review.org.uk.
• Areas for consideration
5.3	The review team has given preliminary consideration to the areas it will need to consider to determine whether the benchmarks against which the administrative justice system should be measured are being achieved. They are: helping users through the system; an accessible system of tribunal justice; preparing for the information society; a coherent system of tribunal justice; a well supported system; a manageable judicial system; getting the right members; proper training; adding new jurisdictions; and testing how the system performs
5.4	A number of questions on each of these areas follows in separate sections.
5.5	The review has also identified areas on which it seeks information from Government departments only. At section K, which follows the more general questions, there is a list of more detailed questions, although departments may also be expected to submit answers on the more general issues as well.
5.6	In addition to the specific questions, the review welcomes views on: aspects of the current system which can be improved to meet users' requirements better; areas of good practice which might be applied more generally; aspects of good practice in foreign jurisdictions, the adaptation of which should be considered for the UK; devolution issues in any part of the UK; and other issues which should be considered.
• Selective Responses
5.7	Each area raises a large number of individual questions. Consultees should not feel they must answer all the questions. Rather, we encourage respondents to limit any response to those areas in which they feel they have most to contribute. Such focussed responses are particularly welcome. Thus, consultees should feel no obligation to cover all topics, or all questions within a topic. Indeed, the review expects that very few will wish to cover the full range. It would, however, assist analysis if respondents could give the question number(s) with which they are dealing.
5.8	The review would be especially pleased to learn about the experience of those who have used a tribunal and to receive suggestions about views on how the current arrangements can be improved.
5.9	The review cannot, however, deal with any individual issue or complaint relating to any specific tribunal.
• Research
5.10	In the time, and with the resources available to the review, it will not be possible to promote a substantial programme of new research. The review is most anxious to learn as much as it can about the impact of tribunals on users, and hopes to commission some research on this issue.
5.11	The review would also be most grateful for any assistance that researchers currently examining aspects of the administrative justice system might be able to offer. If relevant work-in-progress were to be submitted, this would clearly fall outside the normal principle that material sent to the review would eventually be placed in the public domain.
• Seminars and other public meetings
5.12	It is unlikely that, in the time available, the review will be able to hold general public hearings on the issues raised by the review. We are, however, considering a number of ways in which the consultation responses can be tested and discussed with users, their advisors, and tribunal members and staff. This is likely to include a series of meetings to be held in Autumn 2000.
• Overseas contributions
5.13	The review is aware that many of the issues which we will need to address in the context of the UK have been the subject of inquiry and reform in other jurisdictions. We would be very grateful to receive contributions from overseas about significant developments in other administrative justice systems which might be relevant to our thinking about developments in the UK.

• Submissions
6.1	We would be grateful to have responses no later than Friday 15 September 2000. We would welcome earlier responses if that were at all possible.
6.2	Hard copy submissions should be sent to: Frances Mascoll Review of Tribunals, Room 3.S.6, Southside, 105 Victoria Street, London SW1E 6QT. Tel: 020-7210 1217 Fax: 020-7210 1219.
6.3	E-mail submissions should be sent to her at: fmascoll@lcdhq.gsi.gov.uk.
6.4	Paper copies of this paper are available free of charge from Frances Mascoll at the above address.
• Publication of submissions
6.5	The responses to the consultation exercise will be analysed and summarised, and the resulting document widely circulated. Although we do not at this stage have plans to publish actual responses, we would expect to make them available on request. Respondents should indicate if they wish some or all of their response to be confidential to the review. Researchers who are willing to share "work-in-progress" with the review are particularly asked to identify such material so that it is not put prematurely into the public domain.

A.1	What information do users need to decide whether to bring a case to a tribunal, how to gather their evidence, and how to present it effectively? (The review would particularly welcome views from users on good practice.)
A.2	How should that information and advice be provided: by original decision-makers; by tribunal staff; written and Information and Communication Technologies (ICT) material; or by advisory services?
A.3	What arrangements should be made to ensure that good quality information and advice reaches the right sectors of our diverse community?
Practical help
A.4	What other advice and support do users need if they are to prepare or present their own cases effectively?
A.5	Are there kinds of cases which users cannot be expected to prepare or present unassisted? What are they, and what are the problems they face when dealing with cases themselves?
A.6	What kinds of advice and assistance should there be to help with these? Should there be limitations on the parties' right to advice or representation, for example to keep procedures informal?
A.7	Since Franks, the general rule has been that tribunals should not normally have the power to award parties the costs of legal representation (except possibly when the other side has behaved unreasonably, or abused the tribunal's processes). Does this remain an effective way of controlling the use of legal representatives? Are there tribunals, or areas of work, where it is no longer appropriate, or has created problems?
A.8	What information is available about how much it costs to bring or defend a case, and any costs of complying with the requirements of the tribunal's system or procedures?

B.1	Are there tribunals in which it has now become difficult for the parties to act without legal assistance or representation? (This may have happened for a variety of reasons. It may not necessarily be a bad thing.)
B.2	Where there are problems, can the process be managed or reversed?
B.3	How can practice and procedure be improved to make it easier for users to prepare and present their own cases? (The review would particularly welcome examples from users of good practice.)
B.4	Are there barriers, for some users or for all, which make it difficult for them to attend or to participate in hearings, where that is appropriate?
B.5	What are the respective advantages and disadvantages of oral and written procedures?
B.6	Are there particular or general pressures pointing towards greater formalisation? How can they be managed and/or reduced?
B.7	Can the structure or procedures of tribunals be simplified, for example by separating cases which turn on facts from those with a significant element of law?
B.8	Do tribunals handle cases quickly enough? Do they have the procedural tools, and any necessary sanctions, to manage cases and hearings effectively and quickly, having regard to the nature of the work?
B.9	Does the objective of a tribunal system, simple and informal enough for the citizen to be able to use it without assistance, remain realistic?
Service provision
B.10	Are there other ways in which convenience and accessibility to the full range of tribunal users can be increased?
B.11	Are there problems for: access; the quality of the judicial process; the support services; or speed in the way hearings are currently set up and administered?
B.12	Are there any circumstances where access to tribunals should not be free?
B.13	Where access to a tribunal is not currently free, how does the imposition of a fee affect the user's rights and choices in bringing a case?

C.1	What are examples of good practice in the use of ICT in particular tribunals?
C.2	To what extent are users and the advice services already taking advantage of ICT?
C.3	What are the implications of the Modernising Government initiative for the future of the tribunal systems?
C.4	In what ways can ICT improve, streamline and render more efficient the current tribunal system (for example, better document management systems)?
C.5	In what ways can ICT create new ways of administering and providing tribunal services (for example, using the Internet)?
C.6	What fundamental challenges for the provision of tribunal services are presented by the emergence of the Internet-based information society (for example, new types of problem or dispute and new ways of individuals interacting with the state)?
C.7	How can these developments be delivered for those who do not have direct access to ICT?

D.1	Does a separate system of tribunals, distinct from the courts of law, continue to be an appropriate way of dealing with at least some cases? What are its advantages and disadvantages? What sort of cases does it handle best?
D.2	Could some of the cases currently decided by tribunals be more effectively handled elsewhere (in the ordinary courts, by a different tribunal or an ombudsman, by alternative dispute resolution, etc)?
D.3	Are there areas of law where citizens have no, or insufficient, right of appeal, for which recourse to a tribunal would be appropriate?
D.4	Could greater coherence be given to the current arrangements by amalgamating or grouping tribunals?
D.5	What kinds of grouping, for example by: area of law; nature of dispute - for example disputes between individuals; appeals against state decisions or actions; licensing; regulation of goods or services; first instance and appellate tribunals; or size of caseload might be adopted?
D.6	What would be the advantages, and disadvantages, of such groupings?
D.7	Are there factors which would inhibit moves to a very simple, or even single, structure?

E.1	Do the current systems of administrative support meet the needs of tribunals and users?
E.2	What are the advantages and disadvantages of government departments with policy responsibilities also providing administrative support and funding to the relevant tribunals?
E.3	Are tribunals seen to be clearly independent and impartial? If greater independence is needed, what is needed to achieve it?
E.4	What mechanisms are necessary to ensure that the tribunal system works effectively to identify possible problems (and possible solutions) in: the substantive law; departments' systems for decision-making; how decisions are notified to customers; or other departmental systems for delivering services?
E.5	What are the respective responsibilities of tribunal members and administrative managers within a tribunal system? Can the allocation be improved?
E.6	Are there sufficient career and development opportunities in the area of tribunal work to ensure an adequate supply of properly trained staff?

F.1	What facilities do the tribunal members need to ensure that the system works effectively, that cases are effectively allocated within a tribunal, and there is sound and consistent decision-making?
F.2	What are the principles which should help to determine whether particular tribunal systems should have a further second-tier appeal stage attached to them? When, if at all, should appeals go straight to the courts of law? Should any rights of appeal be limited to points of law?
F.3	Does the current: composition (including qualification and training); organisation; procedure; or any other factor make it difficult for some tribunals, or all, to make decisions which carry the necessary authority?
Jurisdiction and remedies
F.4	Are there particular tribunals whose jurisdiction is too wide, or too narrow?
F.5	Are there areas where tribunals are undesirably limited by the remedies available to them?
F.6	Could the range of remedies available to those who have a dispute to be resolved usefully be widened e.g. to allow tribunals to refer cases to mediation, or to supervise negotiated settlements, or to embrace other forms of Alternative Dispute Resolution (ADR)?
F.7	Like other parts of the civil justice system, tribunals have to deal with many different kinds of dispute. Do their : jurisdiction and remedies; procedures; management tools and processes fully reflect that? If not, how can they be improved?
The development of the law
F.8	Are the jurisdictional boundaries between the tribunal system and the ordinary and higher courts as clear as they should be?
F.9	Do they provide a practical, proportionate and sufficiently expert mechanism for the coherent development of the law?
F.10	In particular, can the appeal routes from tribunals be rationalised?

G.1	Do the current arrangements ensure an adequate supply of: legally qualified tribunal members; and non-lawyers in a tribunal; with the right capacities and skills for the tasks; and adequately representative of the community?
G.2	If not, what changes in any of: responsibilities for appointment; recruitment procedures; career structure for members; qualifications for appointment; and any other matters would improve on the current position?
G.3	In particular, what is the distinctive role of non-lawyers - both those with other professional qualifications and other lay persons - in the work of tribunals? How is that role to be specified, in appointment criteria and elsewhere? Do non-lawyers need distinctive appointment procedures?

H.1	What sorts of training do tribunal members need to act effectively as chairmen and chairwomen or as members in their various roles?
H.2	Who should be responsible for: setting broad policy and approaches for training; determining the detailed content of training courses; and delivering training?
H.3	How should the effectiveness and value for money of the training that is provided be tested?
H.4	What training is needed for tribunal support staff? How is that best determined and delivered?

I.1	What principles should determine whether a specific right of appeal is required for any particular class of administrative decisions? Are there areas, or types of case where judicial review will be preferable?
I.2	What principles should determine whether any such appeal is to be heard by the ordinary courts, or by a tribunal? And by an existing or a new tribunal?
I.3	What arrangements are needed to ensure that any new appeal right is heard: by tribunal members of the right kind and level of expertise; with appropriate procedures and information systems; with effective administrative arrangements; and with an appropriate system of further appeal, if necessary?

J.1	What arrangements should there be for setting standards of customer service, and of user satisfaction, for tribunal systems?
J.2	What arrangements should there be for ensuring that these standards are met, and reporting on performance?
J.3	Should there be arrangements for standards of consistency in the decision-making of tribunals?
J.4	What arrangements should there be for ensuring that those standards are met, and reporting on performance?
J.5	What other arrangements or institutions are needed to help Government and users get a clear picture of how well the system is working and how it should be developed or reformed?

K.1	The name of the tribunal, with a brief description of its business.
K.2	The number of cases dealt with each year, where appropriate by main work categories listing: cases received; total disposals in the year, separating those in which disputes are resolved, and those otherwise disposed of; and cases pending at the end of the year.
K.3	The time taken to deal with a case, from first receipt to final disposal, and the time taken to implement the tribunal's decision (statutory time limits for particular stages should be specified).
K.4	For appeal tribunals, the percentage of appeals which succeed.
K.5	The managerial structures for the tribunal administration (with any specific legislative provision, and copies of e.g. agency framework documents, published objectives and targets).
K.6	How tribunal outcomes are enabled to feed back into systems for taking and improving departmental/agency decision-making. What are the arrangements for using the tribunal to identify and correct any problems with the substantive law, or departmental policies and service delivery?
K.7	The nature and scope of current ICT systems, and any major plans for improvement.
K.8	How the tribunal(s) fit in the department's Modernising Government strategy.
K.9	The numbers and grades of staff engaged on providing administrative support to the tribunal.
K.10	Copies of any published charter or customer services standards.
K.11	Copies of information and guidance for users on the tribunal and how to use it.
K.12	Performance and user satisfaction measures in the tribunal.
K.13	Arrangements for assistance for users, legal or otherwise (including legal aid).
K.14	Arrangements for providing hearings (including their locations).
K.15	The extent to which the tribunal's practices and procedures have been reviewed for conformity to ECHR requirements, and any particular concerns which have been identified.
K.16	The arrangements for appointing tribunal members, both legally and otherwise qualified.
K.17	The number of members of the tribunal, by category of appointment and whether full-time or part-time (in the latter case, with an average number of sitting days each year); and rates of pay.
K.18	The arrangements for training tribunal members, and the approach to and content of training.
K.19	The arrangements for staff training.
K.20	The resources expended on: tribunal member salaries and expenses; staff salaries and expenses; system administration; accommodation; and tribunal member training; and staff training.