Question Areas

•   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

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 on good practice.) 115 respondents commented on this question. The following points were made: 25 respondents said that potential appellants needed reasons for the original decision to be set out in full; 27 suggested that details of the right to appeal were needed, together with the specific eligibility to appeal and an explanation of the law on which the original decision had been based; 16 said that potential appellants needed to know what the relevant law was, and where to find it; 4 said they also needed to know what had to be proved; 9 cited the case's chances of success; and 4 whether representation was necessary. Appellants also needed to know: where they could get independent professional, legal or medical advice (26), what the costs of bringing a case would be (14), and whether public funding would be available (8). 32 respondents (a third of which were user groups) said that it was important to know the extent of the tribunal's jurisdiction and what it could and could not do; for example, what types of complaints it could deal with, what remedies were available from it, and what the onward appeal route was. One or two also mentioned the tribunal's composition. 6 mentioned that it might be useful to know if alternative dispute resolution mechanisms were available and suitable. 48 respondents mentioned the need to have details of the tribunal's procedures and practice, such as practice directions, how to initiate proceedings, what forms had to be completed and how; and when and how to communicate with the tribunal (for example, by letter, telephone, fax, e-mail etc), and with whom. 25 respondents said that appellants needed to know any time limits and whether the tribunal could extend them. 14 respondents said that a practical guide as to how to set out a case, with specific examples, would be useful. 27 said that all information should be set out in plain English and take account of those with special communication needs. 24 said that there should be a range of simple booklets, leaflets and user guides. 35 respondents mentioned the need for appellants to be told what evidence and documentation should be provided and by whom. Appellants needed to be told what was evidence (and what was relevant evidence), and whether witness statements were needed. One respondent said that potential appellants needed to understand that a moral case does not equate with a legal one (End note 1.). Two said that appellants needed to know how the other side's case would be presented. A number of individual good practice examples were given: Employment Tribunal Service, Court Service, Special Educational Needs Tribunal, Child Support Agency, Mental Health Review Tribunal and Occupational Pensions Regulatory Authority booklets; the education admission panels' Code of Practice and the Central Arbitration Committee's (plain English) guide and website. The extent to which different means of communication were used varied greatly. The Local Government Ombudsmen mentioned that appellants should be told specifically how to complain about the tribunal.
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? There were 109 responses. In identifying who should provide information: 62 said that the tribunal should be the main source of detailed advice (for example, sources of further information, possible representation, what would happen before, during and after the hearing). 46 mentioned independent advisory agencies such as the Citizen's Advice Bureaux, trades unions, specific user group organisations and mediation services. 16 specifically mentioned professional services such as law centres, solicitors and specialist advisers. 13 said that advice should be available from Government departments or agencies, local authorities, ACAS or, in one case, MPs. 36 thought that the original decision-maker should provide 'basic' information such as: the reasons for the original decision; details of the right to appeal; specific eligibility to appeal; an explanation of the law on which the original decision had been based and where to find it; and how to initiate an appeal. On how information should be provided:   36 suggested that ICT should be used where possible, but recognised the current limitations of access. Of those, 5 said that videos should be available. 13 said that information should be given in writing, 12 specifically mentioned leaflets or explanatory booklets (to outline appeal rights, next steps and give contact points), 6 said face to face discussion would be needed; and a few said that media advertisements and telephone help lines might be useful. two respondents suggested that a new overarching Public Administration Commission or a tribunal call centre, providing a single portal for advice across a full range of tribunals, (End note 2.) should be created which would be responsible inter alia for the production and delivery of information and advice.
A.3	What arrangements should be made to ensure that good quality information and advice reaches the right sectors of our diverse community? Nearly half of the 81 respondents said that there should be a very wide distribution of the information and sources of advice. Almost as many emphasised the need to provide it in as many different formats (including Braille, large print and audio tape) as possible to cater for general needs and those with communication difficulties, e.g. those whose first language was not English, the blind and the deaf. 10 respondents said that users should be consulted about what was needed. Some suggested a videotape of tribunal proceedings. 9 respondents mentioned the need for language to be simple, and presentation to be user friendly. 12 said that the material should be 'quality assured', for example, by use of Crystal Marks, Plain English Awards, or audits. 4 mentioned the need for adequate funding and one respondent, a Government department, made a point of saying that the information should be free.
A4.	What other advice and support do users need if they are to prepare or present their own cases effectively? Out of 77 respondents, 28 mentioned that help to enable users understand what the process would be like, and what they had to do, should come from the tribunal or relevant Government department. That should cover such matters as procedures, presentation, practicalities, venues, contacts and sources of further advice. Three respondents thought that appellants would benefit from observing a tribunal in action in another case. There was considerable emphasis (26) on the need for good quality advice services, including lawyers, other professionals and interpreters. 7 mentioned the need for legal aid for representation or advice. The need for accessible venues and payment of travel and witness expenses was also mentioned.
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? 49 out of 90 respondents said that many cases involved complex law, and specialised issues beyond the comprehension of the lay appellant. The Employment Tribunal and EAT jurisdiction was cited as being particularly difficult, especially equal pay and sex discrimination cases. Those could involve large sums of money; the livelihoods of either side; a difficult burden of proof; and the need to understand highly technical and obscure language, and extensive EU law governing the subject area. 7 respondents mentioned cases which turned on the interpretation of the law. Appellants to the Mental Health Review Tribunals and the Immigration Appellate Authorities, which involved the liberty of the appellant, were thought (by 11) to need considerable help. Social security was said to be another difficult area (16); especially those cases where the benefits were claimed on medical grounds. 10 cited specifically a need for help with those cases where the extent of physical or mental illness was at issue and 7 for those who had literacy or communication problems. Other areas mentioned here, each by a few respondents, were: those involving specialist technical issues which need professional assessment and advice, such as taxation, VAT, property or land valuations; and others where reputation might be at stake or livelihoods lost (registered homes, disciplinary proceedings).
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? 29 of 93 respondents said that specialist expert or legal advice was needed. 16 said that legal aid should be available for complex cases, like employment or social security. It was mentioned (2) that for employment cases pro bono advice is available, but another respondent (End note 3.) said that pro bono work was unlikely to be a widely practical option. 14 said that there should be access to independent advice services. Three mentioned alternative dispute resolution. 48 (about half) of the respondents said that there should be no limit on the parties' right to advice or representation. 10 of those felt that having any sort of limitation would be at risk of breaching ECHR requirements. Some argued that limitations would be unrealistic and could not be sensibly enforced. It was also suggested that limitations would not necessarily increase informality or that informality was no substitute for justice. (End note 4.) One or two argued that there should be limits, because the use of lawyers did increase formality and cost.
A.7	Since Franks, the general rule has been that tribunals should not normally have the power to award 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? 17 out of 88 respondents said that tribunals should have general powers to award costs; 26 said they should not. 31 of those responding said that tribunals should have discretionary costs powers to deal with specific circumstances, such as where one side had behaved or delayed unreasonably, or had abused the tribunal processes. A handful said that the costs regimes had restricted legal representation, but a handful also said that they had not. A handful also said that costs regimes had acted as a deterrent to appeals. A few respondents argued that sanctions in the Employment Tribunals were not effectively used, and individuals argued for more powers in most of the tribunals mentioned throughout the consultation responses, in order to exclude or deal with vexatious or frivolous cases and abuse of the tribunal's processes.
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? 14 out of 38 respondents indicated that they did not have access to costs information; costs varied case by case. 6 respondents said that the costs were minimal; but three said that the costs of legal representation could be substantial. Specific examples were: £5000 for a local authority education department for a Special Education Needs Tribunal; the employer's costs for an Employment Tribunal could run into tens of thousands of pounds, rent arbitration costs could be £10,000 for the first day and £5,000 each additional day, and Appeals Service cases could cost up to about £600, with medical reports costing £80 - £100 per report. Two said that costs were increased because tribunals could not enforce their own decisions, and applications had to be made, with a fee, to the county courts. The point was made that the overall cost to the taxpayer was large. (End note 5.) One or two respondents pointed out that costs were not just financial but were social and emotional as well.

SECTION B - AN ACCESSIBLE SYSTEM OF TRIBUNAL JUSTICE

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 be a bad thing.) 100 respondents named specific tribunals: 33 said employment; 18 social security; 10 immigration and asylum; 15 tax (8 specifying VAT); 6 mental health; 4 health; 4 disciplinary committees; 3 rent assessment; 3 lands; 2 war pensions; 2 registered homes; 2 agricultural arbitration or dairy produce quotas; 2 special education needs; 1 reserve forces; 1 copyright; 1 data protection. The National Health Service Tribunal, Data Protection, Mental Health Review Tribunal, Immigration and Appeals Tribunal and Solicitors' Disciplinary Tribunal nominated themselves. The DTI said that some Employment Tribunal cases were too complex to be handled unrepresented, but that this was not the norm. Legal representation was said to be necessary for employment, social security, copyright and tax cases because of the complexity of both the law and issues to be covered. The large sums of money involved, especially with 'test cases', were also cited in social security cases. A risk to liberty, and the inability to represent oneself because of a mental condition, were issues in mental health review. Liberty, the specialist nature of the jurisdiction, prescriptive and rigid rules akin to the High Court and language difficulties were factors in immigration cases. Legal representation for the NHS Tribunal was said to be necessary because of the complexity of the law, and mandatory because livelihoods were at stake. Data protection legislation was said to be novel as well as complex.
B.2	Where there are problems, can the process be managed or reversed? Out of 50 respondents, 14 said the process could not be reversed. The majority of these said that the main obstacle was the complexity of the law. Of the 14, 7 were user groups and three were tribunals. Of those that said something could be done: 7 specifically pointed to simplification of the law (three in the legal category, two in each of the tribunal and user group categories); 7 said that less formality was needed. 5 said that a less adversarial, more interventionist or inquisitorial approach by the tribunals would help. 4 said that good chairmanship skills were important in helping an unrepresented appellant, and 2 said that having members with the right skills would also help. Individuals mentioned: the need for better clerks, better research facilities in the tribunal for appellants to use, simplification of tribunal procedures, local hearings, and the need for Government departments to carry out an impact analysis of their policy changes.
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). Many comments reflected what respondents said in response to question A3. Of 72 respondents, 16 indicated that the quality of documentation needed attention. It needed to be clearer, better set out, and jargon free. The content and format of decisions and submissions from the original decision-maker as well as decisions from the tribunal were said to need review. A number commented that DSS case materials were diffuse and often unclear, making it difficult for users to grasp the points they were required to address. Appeal papers should be sent out timeously and explain the case history, the reasons for decisions, the main issues, give a clear explanation of the appeals process, and contain relevant statute and case law provisions in relevant formats. The point was made that there is 'no substitute for a good advocate and presenter' (End note 6.) 16 respondents said that procedures should be simplified, improved and proportionate; and set out comprehensibly in guidance notes and leaflets (8). Various case management issues were suggested, including: the use of pre-hearing reviews (6); the need for the tribunal to control better the production and use of evidence, including witness statements (13); better control of cross-examinations (2); and a more user-friendly or less inquisitorial approach (12). Some said that some appellants found the process intimidating and members should be better trained to deal with this. Procedural deadlines and listing timetables should be more flexible (10), and there should be a fast-track procedure for smaller cases (2). There should be more help from tribunal staff (6), including access to tribunal library facilities. A mention was made of each of the following issues: the appellant should have easy access to previous decisions or case law; the use of non-legal chairmen; using a departmental amicus; access to ACAS; and a limit on legal representation for all tribunals.
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? The main barriers identified were physical and mental disabilities. These were highlighted by 32 of 79 respondents. Communication, language and literacy problems were identified by 29 respondents. Those with mental illnesses could have poor concentration and recollection, and introverted personalities or those not used to 'rhetorical display' could be disadvantaged. Their coping strategies might not stretch to dealing with tribunals. The blind or partially sighted, deaf or illiterate or those with speech impediments (even stammerers) each had particular needs. Many appellants did not have English as their first language and needed access to good translation and interpretation services. There needed to be better arrangements to identify and meet various needs. 23 respondents mentioned geographical accessibility of venues. This was a particular concern for those in rural or remote areas, because of the scarcity and cost of public transport. Several respondents said that venues should be local. A range of premises, including courts, community facilities and village halls, could be used to overcome accessibility problems. Venues should be accessible to those with mobility disabilities (22), and to the blind, the deaf and the elderly, and have better facilities such as drinks dispensers, and photocopying machines. 10 respondents quoted money as an issue: loss of earnings, lack of funds, cost generally, and in particular of obtaining medical reports and meeting travel expenses (for appellants and their witnesses). General fear or apprehension and being intimidated by the appeals process were thought by 7 to be a significant factor. 4 respondents said that barriers were created by lack of time especially for the self-employed, employers and not being allowed time off work. 6 respondents mentioned the inflexibility of hearing times, which tended to be confined to normal office hours. Extended hours and weekend hearings were suggested solutions, which might also help those said not to have the time available to them. One or two people mentioned that listing should be better controlled and more reliable, and more notice given of hearings (and more raised this point in response to B.8). The complexity of the law, issues and facts in certain cases were also seen to be a barrier (3). Other issues seen to be barriers were: tight deadlines; lack of care for children or dependants; the complexity and bureaucracy of the process; poor administrative support services; lack of expertise in some law centres and Citizens' Advice Bureaux, on some topics: inability to distinguish between fact, evidence and proof; and poor quality of documentation
B.5	What are the respective advantages and disadvantages of oral and written procedures? There were 98 responses to this question. More than half (56) saw oral procedures as being particularly suitable where cases turned on disputed facts or complex issues, where it was necessary to test the evidence, or because it gave the opportunity to uncover information not disclosed in written evidence. Another key advantage (17) of oral procedure was that it gave the appellant their 'day in court' and allowed justice to be seen to be done (especially in the light of the Human Rights Act 1999). There should be a right to an oral hearing. Oral procedure was seen to be generally more 'user friendly'. The only disadvantage quoted was to the appellant who was unable to attend or participate in an oral hearing. Written procedure was seen to be quicker and cheaper (21) (although time must be allowed for proper preparation and reading). Two individual respondents, however, argued that it was dearer. 10 respondents thought that a written procedure facilitated the identification and presentation of legal issues; helped to clarify the arguments ('concentrate minds'); and was particularly suitable for setting out technical evidence. Written procedure was thought suitable where the cases were relatively simple and turned on the adequacy of straightforward facts. A few respondents thought that written procedures made for more efficient administration. The main disadvantage of written procedures was that it was difficult, if not impossible, to assess properly an appellant's or witness's credibility or character in written proceedings (18). This was particularly important in disciplinary hearings or for employment and other cases where reputation and or livelihood was at issue. Others agreed many appellants were unable to express themselves well or at all on paper because of literacy or language difficulties (16). There was also evidence that appellants had a lower rate of success in their appeals where they relied on written evidence alone (9). One respondent said that written procedure was not appropriate where the outcome was of major importance to the appellant for example, in schools admissions appeals.
B.6	Are there particular or general pressures pointing towards greater formalisation? How can they be managed and / or reduced? 46 responded to this question. Again, the nature of legislation was cited as being a main influence including the complexity of the law (by 8 respondents) and its extension of legal entitlements. (End note 7.) 5 respondents specified prescriptive legal requirements as being an influence, and 1 prescriptive instructions. Three respondents felt that the Human Rights Act would lead to more formalisation. Only 4 said that legal representation was a factor. Other issues mentioned were: a general legal trend towards written procedures; fewer lay members and more single member tribunals (for example under new rules in the Appeals Service); the use of adversarial procedure; the use of pre-trial reviews; more case management; more large scale inquiries; complex disputes; and the importance of the outcome (for example mental health review and immigration cases). Measures suggested for managing or reducing the trend towards formalisation were: by having skilled tribunal case management; members with better interpersonal skills, (including more lay members); changing procedures (for example, dispensing with oaths); giving plainly worded directions, used sparingly; and having local and user-friendly venues. Several respondents cautioned about moving too far away from formality as a certain degree ensured 'fairness', underlined the seriousness of the process, might reduce verbal and physical aggression towards the tribunal, and was useful in containing the length of proceedings. (End note 8.) 12 said that the current position was working satisfactorily.
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? 5 out of 73 respondents agreed in principle, but many more said that it would not be easy in practice. 26 disagreed. 29 respondents said that some cases could be separated by fact or law. 9 said that cases could be separated on some basis other than by fact or law. 15 said that separation would need pre-hearing reviews or some other sift process. Several respondents said that this would be fallible as new issues often arose at hearings. Of the 29 who said that it was possible to separate cases turning on facts from those involving legal issues, some specified which tribunals would be affected: 6 mentioned some simple Employment Tribunal cases, 2 parking appeals, 2 Registered Homes Tribunals, 2 tax, VAT, 1 special education needs, 1 war pensions, 1 local authority cases, and 1 valuations.
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? There were 108 respondents, 69 of whom said that cases were not dealt with quickly enough and 29 said they were. 8 (End note 9.) pointed out that the interests of justice required parties to be given adequate time to prepare their cases. Some suggested that the time taken by some tribunals was disproportionately long to the nature of the case, or the remedies available, specifying: social security (7) (End note 10.); the Special Educational Needs Tribunal (5) (End note 11.); the Registered Homes Tribunal (4) (End note 12.); and Mental Health Review Tribunals (5) (End note 13.). 24 respondents said that tribunals needed more case management powers. 6 said that more powers were needed to prevent or deal with abuses of tribunal processes and 4 that powers were needed to deal with interlocutory matters. 13 said that more tools were needed; including, in particular, sanctions to apply to Government departments which breached procedural rules. 9 said that better procedural rules were needed (some said these should be uniform across the country for tribunals of the same type). It was suggested that tribunals should: set maximum and minimum targets for the stages of a case; give clear directions on admissible material (making sure these were comprehensible to the unrepresented); have adequate powers to ensure compliance with orders, including powers to strike out for non- compliance with directions, or for unreasonable delay (delay by respondent departments being the usual cause cited); give summary judgement on preliminary points; and hold interlocutory case reviews or hearings in all appropriate cases. Many suggested that tribunals should now be meeting the standard set by the new Civil Procedure rules. Tribunals should also give greater attention to listing, making sure that they got more realistic time estimates from the parties, followed nationally consistent listing procedures, and were more realistic about listing slots. Tribunal Presidents should have power to issue binding practice directions to ensure nationally consistent practice. 4 said that current sanctions powers were not used effectively (End note 14.). More resources were said to be needed (9 respondents). Published standards were seen to be a useful mechanism (7 respondents). 2 respondents said that current sanctions and tools were sufficient. (End note 15.)
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? Of 82 respondents 22 disagreed; 12 agreed (half of whom were user groups); and 9 agreed in general but considered there were exceptions and 9 reported considerable variation between tribunals. Jurisdictions which were said not to be amenable to a simple, informal system were: employment, social security, immigration, mental health, lands, registered homes, leasehold valuations, national health service, agricultural lands, dairy quotas and pensions appeals. Tribunals quoted as being amenable to a simple informal system were: Special Educational Needs, local taxation, the Foreign Compensation Commission, the Independent Review Service, the Valuation Tribunals, Parking Adjudicators, Northern Ireland Social Security Commissioners, the Pensions Appeal Tribunal for Scotland, the Solicitors' Disciplinary Tribunal, and Rent Assessment and Education Panels. Some respondents wondered if the objective had ever been realistic, and queried the validity of a simple or informal system. They argued that the simplicity of the system depended on the complexity of the substantive rules, or that simplicity and informality had no bearing on the ability of those before a tribunal to deal with the issues. Whilst simplicity and informality were important objectives, they would never be a complete substitute for appropriate advice and representation and might lead to unfairness. (End note 16.)
B.10	Are there other ways in which convenience and accessibility to the full range of tribunal users can be increased? There were 41 responses. 17 respondents mentioned flexibility in setting up the tribunal; for example, use of more accessible venues including courts, the use of video conferencing, and flexibility in hearing times. 7 mentioned free information kiosks and wider use of ICT, including websites and telephones; 5 access to independent legal advice; two wanted access to clearly drafted law; two mentioned access to a mediator or 'appellant's friend'. Three respondents said there was a need for good complaints systems and staff. Other suggestions included: more tribunals; more multi-person tribunals; a more inquisitorial approach; a register of suitable tribunal accommodation; more interpreters and translators; performance measures; a link to Citizens' Advice Bureaux; Woolf type case management, practice notes and directions; and that a regionally structured tribunal system would benefit from having a President.
B.11	Are there problems for: a) access; b) the quality of the judicial process; c) the support services; or d) speed in the way hearings are currently set up and administered? 57 respondents answered this question. 6 respondents said there were no problems. On a) access, 21 said that inaccessibility of accommodation, facilities or location created problems. There was a wide variety in provision of appropriate locations and facilities, which could make both access and provision of support services difficult. 4 mentioned listing procedures (including cancellations at short notice, or a shortage of medical members). One mentioned more appropriate use of witnesses, and 5 problems with access to medical evidence (difficulty in appellants obtaining reports). On b) quality of judicial process, 12 respondents said that consistency of decision-making was a problem. Also mentioned were: the way cases were conducted (7), quantity taking priority over quality (2), not having a judicial head and previous decisions not being widely available. On c), 15 said that there were problems with support services (servicing distant locations, 'lost' documents, under-resourced or out of date systems, dealing with expenses, 'under staffed, underpaid, under-trained and undervalued'). (End note 17.) On d) speed, 20 said that there were unspecified problems, 6 said that time limits were too strict and one said there was a shortage of members.
B.12	Are there any circumstances where access to tribunals should not be free? There were 74 responses. The majority (49) said that there were no circumstances where access should not be free; but 25 accepted the possibility of some charge. 14 respondents said that charges would discourage frivolous, vexatious or non-meritorious cases, and abuse of process such as late withdrawals of the appeal (for example, in Employment and Special Educational Needs Tribunals). Other circumstances where charges were suggested to be defensible were: where the tribunal was an alternative to a court; in child support cases where the system was exploited by repeat appeals in order to avoid support payments; in licensing and planning; where tribunals were asked to decide commercial disputes; (perhaps) in areas, such as traffic control and occupational pensions regulation, where the costs of the tribunal were met by levying fees on the industry; where insurance companies footed the costs bill; in party v party cases; and in small business cases to address the imbalance between the individual and the business.
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? 12 out of 25 respondents said that imposition of a fee could deter meritorious appeals and risk injustice. 5 respondents said that the difference made by fees depended on the levels (in the Copyright Tribunal the maximum fee of £30 had not been found to deter appeals). 4 respondents said that fees in social cases or unemployment cases might deter appeals, as many potential applicants would be in receipt of low levels of benefit and did not belong to organisations which could pay. Some respondents said that excessive (up to £5,000) fees in the Lands Tribunal had been a disincentive to otherwise meritorious appeals. Three respondents suggested that fees had seemingly reduced the number of leasehold valuation cases. The point was made that right of access should be guaranteed in practice as well as in theory and any charging powers should be exercised in accordance with ECHR requirements. (End note 18.)

SECTION C - PREPARING FOR THE INFORMATION SOCIETY

C.1	What are examples of good practice in the use of ICT in particular tribunals? 31 respondents commented on this question. Specific examples of good practice mentioned were: The paperless tribunal run by the London Parking Appeals Service; Websites. Those mentioned were the Valuation Tribunal, Lands Tribunal, Central Arbitration Committee, Criminal Injuries Compensation Panel, Social Security Commissioners, OPRA, Appeals Service, and the Patent Office; The Employment Appeal Tribunal's online publication of case reports; Use of e-mail by the Central Arbitration Committee, Copyright Tribunal, and the Valuation Tribunal's forthcoming electronic document transmission; Lap-top provision for FHS Appeal Authority chairmen, Social Security Tribunal members (End note 19.), and MHRT clerks; Caseload management and management information systems at the Registered Homes Tribunal and the Appeals Service; and Trials of voice-operated word-processing systems in the Appeals Service. More general responses - not specifying particular tribunals - identified the use of telephone hearings, e- mail determination of interim issues, websites, use of lap-tops, and video-conferencing.
C.2	To what extent are users and the advice services already taking advantage of ICT? This question received 27 responses. 11 felt that little use was currently made by users themselves (although three felt the situation was improving, and three more felt that use of websites was likely to increase, particularly as public access was widened in libraries etc). 7 pointed to an increasing use of ICT by advice agencies, although one respondent said that such use was on an individual basis, and that agencies were not linked to each other. It was noted by one respondent (End note 20.) that the Community Legal Service requires advisers to use IT-based case management systems. Two tribunals (the FHS Appeal Authority and the VAT and Duties Tribunal) provide decisions for users on disc. Two advice agencies were particularly well advanced in their use of ICT: the Citizens Advice Bureaux provide a comprehensive electronic information system, and the Royal British Legion has a comprehensive electronic document management system.
C.3	What are the implications of the Modernising Government initiative for the future of tribunal systems? 18 respondents commented on this question. Four issues were identified: tribunals should be better integrated, with each other, and with the administration generally (3); greater funding for tribunals (4). One respondent (End note 21.) identified the need for additional resources so that tribunal systems could be modernised to prevent increases in workload leading to delays. tribunals needed to become more customer-focused (4 responses). One respondent (End note 22.) thought service delivery should be given weight equal to openness, fairness and impartiality. greater use of IT (7). The requirement to meet the Government's targets for the delivery of services by electronic means was identified, and respondents pointed to possible ways of achieving this: on-line application forms, personal hearings by video- or Internet-conferencing, electronic transfer of cases from decision-maker to tribunal, automated calculating of points in areas such as incapacity benefit.
C.4	In what ways can ICT improve, streamline and render more efficient the current system (for example, better document management systems)? 81 commented on this question. The majority (51) pointed to the Internet for methods of streamlining current processes, in particular for communication between tribunals and parties (24), including allowing applications to be made (5) and decisions to be posted (11) on-line. Websites were advocated by 21 respondents, all of whom thought such sites should contain information about tribunal process, procedures, and accessibility. Three respondents argued that websites should allow users to track the progress of their cases. Two said that tribunal hearing centers should offer access to tribunal websites. 18 responses mentioned the use of electronic case tracking systems or listing systems as a way of streamlining current processes. Other suggestions were: telephone- (3) or video- (12) conferencing; electronic document imaging for core bundles (7); better use of ICT to streamline and speed up the process of producing decisions (6, 5 of whom identified voice recognition software); improved electronic communication links between tribunals and first tier decision-makers (7), particularly MHRTs' links with hospitals, and the Appeals Service links with the Benefits Agency (two each); providing members with access to bespoke legal databases (2); use of IT to classify cases (End note 23.) (1); and use of IT to allow for the remote handling of paper hearings by a single member Two tribunals (End note 24.) thought that tribunals should work together to develop systems.
C.5	In what ways can ICT create new ways of administering and providing tribunal services (for example, using the Internet)? 25 commented on this question. Answers were similar to those on streamlining current procedures. Respondents looked to the Internet (13), and particularly the development of websites(7), document management and listing systems (3), and Internet- or video-conferencing (2). In addition, two respondents thought that the Internet could be used to provide quick, cheap advice on the sort of legal problems that users face. The site provided by Citizens' Advice Bureaux was cited as an example (End note 25.) which could be taken up by the Government, perhaps by developing the Community Legal Service website.
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)? 20 commented on this question. Challenges identified were: the need to ensure security and confidentiality (7) - for example, without a signature, e-mail correspondents were less easy to identify; some users would lack either ICT access, or the means to use it, and should not be disadvantaged (5); the need to ensure ICT systems were compatible with those from whom electronic transfer of data is expected (3); ICT might lead to pressure for faster tribunal decisions, and justice should not be rushed (2); the use of e-mail, videoconferencing etc might make hearings more impersonal (2). One respondent thought that, as ICT enabled citizens to be better informed, they might be more inclined to stand up against the state, which might lead to an increase in tribunals' workload. The Copyright Tribunal predicted that the Internet would lead to a greater number of copyright disputes.
C.7	How can these developments be delivered for those who do not have direct access to ICT? 30 commented on this question. 14 identified libraries as sources of indirect access to ICT. Other sources of indirect access identified were: Internet cafes, post offices, Benefits Agency offices, schools and colleges, or Citizens' Advice Bureaux. Two respondents thought Digital Interactive TV would provide access for many of those currently without. Nine respondents emphasised the need to ensure conventional paper-based information and application processes remained available. ICT could present a threat to access for those without the skills to make use of it.

SECTION D - A COHERENT SYSTEM OF TRIBUNAL JUSTICE

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? 110 respondents commented on this question. All but two wished a separate system or systems of tribunals to continue. Particular advantages seen were: members with developed experience of a particular area of law (27); the ability to appoint non-legal experts as specialist members (10), or to appoint lay members (6); an inquisitorial or interventionist approach (6); procedures precisely adapted to the jurisdiction, and flexibility adaptable to individual cases (9); accessibility (7); local hearings or local knowledge (6); speed (12); low cost (12); and informality (24). Areas of law commonly cited as being particularly suitable for tribunal handling were: employment disputes (16); social security (10); mental health (2); land, housing, and property (7); tax (3); and disciplinary matters (3). Tribunals were thought particularly suitable for dealing with: simple, factual disputes (6); particularly complicated factual disputes which needed expert members (7); and disputes between the citizen and the state (5). Some pointed out that the ordinary courts could not cope with the large number of disputes handled by tribunals. Those who argued that a separate system of tribunals was no longer necessary or appropriate thought that: the Human Rights Act required a wholesale redistribution of tribunal justice, with the courts taking all legal issues, and ombudsmen and independent commissioners dealing with administrative matters (End note 26.); and that a simple court/tribunal distinction was too crude - a more flexible system with a more precise allocation of method of dispute resolution to type of case was preferable (End note 27.).
D.2	Could some of the cases currently decided by tribunals be more effectively handled elsewhere (in the ordinary courts, by different tribunal or an ombudsman, by alternative dispute resolution, etc.)? 93 responded to this question. Three recommended increased use by departments of internal review procedures (partly to improve first-level decision-making). Many (23) saw an increased role for alternative dispute resolution, although as an optional stage in the case before a hearing, not as an alternative. In particular, 9 of these thought that an additional role and resources given to ACAS would increase the effectiveness of Employment Tribunals. Some doubts were raised as to whether ADR was appropriate in citizen/state disputes, (End note 28.) or for social security or immigration disputes. (End note 29.) Most responses were against wholesale transfers of jurisdiction, generally or in specific areas. Proposals for change that were made included transferring: infant class appeals from admission appeal panels to the Local Government Ombudsman; simpler Special Commissioner or VAT and Duties Tribunal cases to the General Commissioners of Income Tax (2); all housing matters to a separate court; to the ETs the county courts' jurisdiction in discrimination in goods and services, and contractual claims arising during employment; related local government and valuation cases to the Valuation Tribunals; and cases involving poor management of haulage firms from the magistrates' courts to the Traffic Commissioners. Some also suggested that particularly complex cases heard in systems with several layers might "leap frog": valuation cases might go directly to the Lands Tribunal, and complicated tax cases might be transferred from the relevant tax tribunal directly to the High Court or the Court of Appeal (End note 30.). Some also suggested that the VAT and Duties Tribunal might usefully exercise a first instance judicial review function. (End note 31.)
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? 39 commented on this question. There was general agreement that judicial review of the legality of a decision was not an adequate substitute for a right of appeal, and was much less accessible or cheap than tribunal proceedings. Some respondents pointed out that only some Government decisions in some areas carried a right of appeal to a tribunal, and argued for an extended or comprehensive appeal in: tax (4) (End note 32.); mental health (3) (End note 33.); immigration (2) (End note 34.); social security (6), and council tax and valuation (2) (End note 35.). It was noted that enquiry procedures gave no right of appeal to objectors (3) (End note 36.). There was no recourse for secure tenants, or applicants for secure tenancies, of local authorities and social housing bodies. It was suggested that there should be a separate tribunal appeal against refusals of legal aid funding (4) (End note 37.). It was suggested (End note 38.) that there should be an independent review or ombudsman system to review actions by an employer short of dismissal, but which have profound implications for a person's career development and job security.
D.4	Could greater coherence be given to the current arrangements by amalgamating or grouping tribunals? 92 commented on this question. Of the 82 who expressed a view, 28 were in favour of general amalgamations and another 23 suggested amalgamations in particular areas (specified in D.5 below). 8 thought any further amalgamations generally undesirable, and 23 thought that particular areas or tribunals could not usefully be merged with other tribunals, in the areas of education, the security services, professional disciplinary tribunals, social security (End note 39.), pensions, parking, the regulation of care, agriculture, and the Central Arbitration Committee, Copyright Tribunal, Special Educational Needs Tribunal, Mental Health Review Tribunals, (End note 40.) and the Registered Homes Tribunal. 7 responses (End note 41.) (including some which favoured amalgamations elsewhere) thought that the Employment Tribunals and the Employment Appeal Tribunal should remain separate, because they dealt with a coherent body of law with the great majority being disputes between the citizen. They therefore had a greater resemblance to the county courts than other tribunals, but should be kept separate from them to retain the specialist tribunal composition and informality. The reasons for supporting amalgamation were split between advantages for the decision-making process and administration. A little less than half thought that groupings would lead to more coherent decisions or more expert membership, better member training, and more standardised, streamlined adjudication procedures. Rather more saw administrative advantages: better staff support, better hearing facilities, more effective case management, better IT, or more effective use of resources through economies of scale. The most usual reason given for not wishing to see amalgamation was the danger that it would mean the loss of specialist skills, generally or in particular areas.
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? 80 commented on this topic. 8 suggested that grouping should be according to the nature of the dispute, separating tribunals which dealt with disputes between the citizen and the state (perhaps distinguishing local government), from disputes between individuals or individuals and companies. Another suggestion was the amalgamation of those second-tier tribunals which heard appeals from other tribunals, before or instead of the ordinary courts. Specialist inspectorates and ombudsmen would also form distinct groups. Most groups suggested were by areas of law: housing; valuation and local taxation; education; tax; social security and immigration; health; mental health; traffic; financial services; statutory regulators; environment; and agriculture (or food, cultivation and ecology).
D.6	What would be the advantages, and disadvantages, of such groupings? There were 44 comments on this topic, usually containing a mixture of advantages and disadvantages. Advantages A properly grouped system would have a clear public identity, emphasising the distinctive nature of tribunal justice, and making it easier for users to know where to go with any particular case. Actual and perceived independence would be increased (see E.3 below). It would allow more, or complete, standardisation of procedures, creating a uniform route for the citizen to challenge administrative decisions, with common, less confusing time limits etc. A unified structure would create scope for a judicial career as a tribunal member, and enable members, if they so wished, to move between areas of work (and perhaps also ease moves into the ordinary courts). It would bring a more challenging range of work for members, in a more distinctive branch of law. By strengthening the current member hierarchy, it would facilitate effective management. It would enable rationalisation of members' recruitment, and terms and conditions. It would allow for more efficient training. A common administrative support system would bring improved facilities, through sharing and economies of scale. It would enable rationalisation and improvement of accommodation and IT. It would promote the pooling of knowledge and expertise, and the promotion of best practice. It would offer a career structure and variety of work to staff, and so attract better quality people. It would enable common standards of customer service to be developed and applied. Disadvantages The most common concern (14 comments) was that the expertise which had developed in particular tribunals would be lost within larger groupings, or that groupings would cover too wide an area to continue the necessary degree of expertise. The advantages of procedures precisely tailored to a jurisdiction might be lost. Larger groupings were likely to become more formal in procedure. A larger administration would be slower and less efficient. There might be a reduction in local hearings.
D.7	Are there factors which would inhibit moves to a very simple, or even single, structure? Some 30 commented on this question. Most pointed to the wide varieties in the characteristics of tribunals, deriving from their wholly distinct statutory frameworks, often varied rules and procedures, and different volumes and types of case. These were thought likely to make a single structure unattainable and likely to undermine much of the effectiveness found in the current system. A single administrative structure was likely to become bureaucratic, monolithic or inefficient.

SECTION E - A WELL SUPPORTED SYSTEM

E.1	Do the current systems of administrative support meet the needs of tribunals and users? 80 commented on this question. 5 reported satisfaction with the administrative systems in tribunals generally. 16 reported satisfaction with the administration of particular tribunals (three for the Special Educational Needs Tribunal). Only 5 of these responses came from user groups or individuals. (End note 42.) 6 came from local government, and 11 from tribunals or tribunal members. 39 thought that current systems were not meeting the need, generally or in some areas. (End note 43.) 10 attributed problems to under-resourcing, with insufficient staff, and insufficient or poor quality equipment and accommodation. 19 thought that staff did not have the skills to carry out their tasks, because of insufficient training, or excessive turnover probably caused by low pay rates. Three reported structural problems, usually that the administration was excessively localised. 4 respondents pointed out that tribunals with low or erratic workload, with very few support facilities, were particularly vulnerable to disruption.
E.2	What are the advantages and disadvantages of government departments with policy responsibilities also providing administrative support and funding to the relevant tribunals? 67 commented on this question. 12 (End note 44.) thought that there was a balance of advantage in policy departments being responsible for the administration of relevant tribunals, generally (5) or in relation to particular tribunals (7). It was pointed out that the tribunal system had been founded on the basis that formulation of policy, and responsibility for its delivery including the maintenance of an effective system of appeal, should rest with the same department. That link made it easier to identify and remove weaknesses in legislation or policy. It enabled due consideration to be given to delivery systems, including appeals, in the development of policy. Close links were also enabled feed-back from appeal systems, helping to improve initial decision-taking. Departments' links with their stakeholders enabled delivery systems to be tailored to specific client groups. Close links also thought to ensure that tribunals were properly resourced. 48 (End note 45.) thought that the disadvantages of administration by policy departments predominated, generally (30) or in relation to particular tribunals (18). The majority (32) thought that it was impossible for a tribunal to be seen to be, or to be in reality, independent if it was funded by a public body which was always or often the decision maker and a party to an appeal. The problems arose in a particularly acute form when, for effective tribunal administration, administrative staff exercised judicial functions delegated by tribunal members, since they would be doing so for or against their direct employer. These arrangements were thought unlikely to meet the standards of independence and impartiality set by Article 6 of the European Convention on Human Rights. Some thought that departments saw tribunal administration as a peripheral activity which carried lower priority than core functions which led to under-funding, and inability to update and modernise procedures and facilities (eg Mental Health Review Tribunals).
E.3	Are tribunals seen to be clear independent and impartial? If greater independence is needed, what is needed to achieve it? 85 responded on this question. Two thought that tribunals were generally independent, and 19 (End note 46.) thought that particular tribunals were perceived as independent. 21 thought that tribunals generally were not, or were not perceived to be, independent, (End note 47.) and another 24 that particular tribunals were not, or were not perceived to be, independent. (End note 48.) The reasons given for a perceived lack of independence generally coincide with those expressed in relation to E.2. Additional factors cited include: appointment and removal conditions creating insufficient security of tenure; other terms and conditions of service for members; appointments procedures; policy departments' control of tribunal procedures; and lack of independence in non-lawyer members practising professionally in the area of the tribunal's jurisdiction. 5 thought that there should be a separate and independent tribunal administration, with another 12 suggesting the Lord Chancellor's Department or a Justice Department. The Legal Action Group did not favour administration by the Court Service. Other comments included suggestions that the General Commissioners of Income Tax were still excessively reliant on the Inland Revenue for their administration, or showed excessive friendliness towards Revenue representatives; and that the medical member of disability appeals tribunal might also, and undesirably, be working as an examining medical practitioner on behalf of the Benefits Agency.
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? 44 commented on this question. First, the tribunal itself needed to be structured in a way which would enable it to fulfil such a role. That would be difficult without a national President, and accurate systems for recording tribunal decisions, and collating and analysing them to reveal patterns. It depended on clear, simple decisions, capable of identifying systemic problems and quickly promulgated. Identifying trends should be a responsibility for a President and Regional Chairmen. Some suggested that the results should be used as a basis for recommendations for improvement and change to be included in an annual report, for this purpose alone or as part of an overall annual report. Others favoured regular, minuted meetings with decision-makers at a senior tribunal level. The Appeals Service noted that its place in the structure of the DSS had enabled it to establish an inter- agency group focussed on managing appeals performance, arrangements for sharing management information, and clear service statements setting out undertakings for performance, as well as a range of meetings and representations. The President was required to submit an annual report on issues raised by first-tier decision-making. 6 suggested that this function would require more effective oversight by the Council on Tribunals or a similar body with wider powers. It might also be part of the role of an association of tribunal members. 5 respondents pointed out that separating tribunal administration from policy departments would make it more difficult to arrange such feed-back; or that it was important to create some incentive for departments to pay due attention to reporting of this kind.
E.5	What are the respective responsibilities of tribunal members and administrative managers within a tribunal system? Can the allocation be improved? 29 respondents commented on this question. Most thought that the responsibilities of tribunal members centred on: the efficient conduct of the hearing, ensuring that users knew what was expected of them; being sensitive to their needs to ensure that all matters were dealt with; and prompt promulgation of decisions. Listing and case allocation were also regarded as the responsibility of tribunal members. The administration was regarded as responsible for effective support in pre-hearing procedure; ensuring the timely exchange of documentation; notifying the parties about the hearing and making administrative arrangements for it; and ensuring the prompt communication of all relevant material. In some cases, the division was a matter of regulation. There were few overall concerns about the distribution of responsibilities. Three respondents expressed concern about whether administrative staff should have responsibility delegated from members for carrying out such functions as dealing with applications for adjournments, particularly when the staff were employed by a department which was a party to the appeal. (End note 49.) Three others saw no problem with this, and others emphasised the importance of members and staff working closely in the tasks associated with case management.
E.6	Are there sufficient career and development opportunities in the area of tribunal work to ensure and adequate supply of properly trained staff? 39 respondents commented on this question. Almost all (End note 50.) thought that the current fragmented arrangements for the administration of tribunals made it difficult or impossible to provide sufficiently interesting and varied work for staff to develop a range of skills or to develop a career path within tribunals. They also militated against there being senior appointments for staff to aspire to. Poor overall rates of pay also worked against a high quality workforce.

SECTION F - AN EFFECTIVE FRAMEWORK FOR DECISION- MAKING

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? 63 commented on this question. Some comments concentrated on the structure of the tribunal. It was generally agreed that there should be a clear judicial head, with good judicial management skills. Individual chairmen had to have the right competences, and be properly trained. There had to be effective arrangements for allocating cases to benches of appropriate experience and expertise. Administrative arrangements should ensure that members saw case papers in sufficient time to prepare themselves properly for the hearing, and they needed access to library (and possibly research) facilities sufficiently covering issues raised in cases within the jurisdiction, preferably through IT. Tribunals should have arrangements (and performance targets) which ensured that decisions were produced quickly, and those which might assist other members circulated in a readily useable form. Effective arrangements for circulating authoritative or binding judgments from appeal tribunals or the ordinary courts were essential. These needed to be supplemented by continuous training arrangements and guidance manuals. Some thought that an audit of decisions, or assessment of members' performance was required. An adequately resourced and efficient administrative support was also required, as were good case management systems, for which IT was essential.
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? 56 commented on this question. The Council on Tribunals pointed out that the Franks Committee had favoured the establishment of second-tier appeal tribunals, but that not many had been established. Factors pointing towards such a tier included the size of the jurisdiction, and the weight of the first instance tribunal (with a second-tier being more important where there had been only a single person tribunal, or where none of the first-tier tribunal members was a lawyer). Others suggested that a second tier might be needed for consistency where first-tier decision-makers were acting relatively independently, and for decisions which raised issues beyond the scope of the case in which the decision was made (3). Specific additional skills, insights or expertise might be needed. But there was a danger of extra delay, and there should only be a second tier where it gave specific added value (5). The Law Society saw no need for uniformity across all tribunals. Some respondents suggested that the jurisdiction of the existing second-tier tribunals should be extended. Areas where the introduction of a second-tier was suggested included: tax (by making the - possibly reconstituted - Special Commissioners the first appeal body from the General Commissioners of Income Tax (End note 51.)); and rent assessment and leasehold valuation, with all panel and tribunal cases going first to the Lands Tribunal (End note 52.). In war pensions, it was suggested that there should be a full right of appeal to the High Court. (End note 53.) Concern was expressed about the absence of an appeal from decisions of the Mental Health Review Tribunal. Although the possibility of a second-tier tribunal was raised, others (End note 54.) favoured an appeal either to the Family Division of the High Court, or to a new Mental Health Division. The great majority of those who commented thought that appeals above a first-tier tribunal should be limited to a point of law only, by leave of the tribunal or the court. The Bar Council pointed out that this depended on an acceptable level of performance in fact-finding in the initial tribunal. It was suggested that the new civil procedure for appeals by way of review, with evidence only allowable by order, was a suitable model. The Royal British Legion argued that the subjective element in decisions on war pensions required a wider right of appeal. Appeals from a tribunal to the relevant Secretary of State were said to be unnecessary, and inconsistent with independence.
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? 81 respondents commented on this question. The Council on Tribunals commented that tribunals without a President to give central direction were unlikely to develop a coherent approach to decision-making, and there were special problems for those with an extended local base. 13 (End note 55.) respondents thought that single-member tribunals were inferior in authority (because of reduced expertise, accessibility or representativeness), and 7 of these expressed reservations about moves to single-member tribunals in social security cases. Some thought that the status of tribunal members should be enhanced by clear titling eg tribunal chairmen should be designated by a generic title such as District Judge (Administrative Law). Specific comments were made in relation to the following tribunals: Education admissions and exclusions panels (End note 56.). The legislation and guidance under which they operated was thought by some respondents so to restrict their discretion that there was no effective right of appeal. Their procedures were thought to compare badly in efficiency and fairness. Their members lacked sufficient standing or expertise, or perceived independence, and a legal chairman might be required. Two changes to government guidelines in this year had undermined authority. Special Education Needs Tribunal ( End note 57.). There were suggestions that the tribunal was more exacting of local authorities in procedural standards than it was of parents (although this was also praised as desirable accessibility). There was said to be inconsistency in decisions, and an excessive reliance on apparently irrelevant argument at the hearing. Decisions were felt not to be sufficiently clear. It was suggested that the tribunal needed greater powers to require local educational authorities to comply with its decisions. Procedures were also thought to be variable. Mental Health Review Tribunals ( End note 58.). The absence of any power to bring about the conditions required for a conditional discharge was thought to weaken authority. The way procedural rules were widely disregarded by hospitals and time limits passed undermined authority significantly, including by making adequate case preparation difficult. Responsible Medical Officers should also be required to stay throughout the hearing. A recent decision establishing that the Mental Health Act presented no bar to a clinical team making a fresh decision to detain without any change of circumstances very shortly after a tribunal had ordered discharge was thought to undermine authority significantly. Research had found high levels of non-compliance with some common law procedural requirements. The quality of decisions and of supporting reasons varied widely. The proposed removal of medical members would do severe damage to their decision-making capacity, and to the tribunal's status. Disciplinary tribunals ( End note 59.). There were thought to be significant variations in the procedure, and grounds of appeal from, professional disciplinary tribunals. It was argued that medical or dental disciplinary hearings should have a lawyer chair. The administration of health service disciplinary tribunals militated against consistent approaches or administration.
F.4	Are there particular tribunals whose jurisdiction is too wide, or too narrow? 39 responded to this question. Most suggestions related to the Employment Tribunals (End note 60.). They were that the ETs should: become the forum for litigation instituted by the employer not just the employee; hear all cases involving contractual jurisdictions, whether or not the applicant remained in employment and including restricted covenants; therefore have authority to grant injunctive relief; be enabled to make recommendations to the employer to improve work place practices, as well as awarding compensation, where an action for unfair dismissal had succeeded; have an increased limit on claims, or an unlimited jurisdiction; be the starting point for all discrimination cases (although there should be the possibility of transfer to the county courts); have jurisdiction to hear goods, facilities and services cases under the Disability Discrimination Act 1995; and take the work of reserve forces appeal tribunals. It was suggested that the Special Educational Need Tribunal should: have a statutory duty to have regard to factors other than simply the needs of the child, such as the availability of resources and the need to use scarce resources equitably and in accordance with local policies; be able to examine undue delay or other aspects of local educational authority administration during the statementing processes, and also examine the authority's compliance with the requirements of its own statements or SENT decisions; be entitled to deal with all issues relating to the SEN Code of Practice; be able to impose time limits for the implementation of orders (legislation has been prepared but not approved); have powers to deal with interlocutory matters; and cease to deal with school allocation appeals unless the appeal is on special needs grounds. It was suggested (End note 61.) that Mental Health Review Tribunals should be enabled to review the effective detention of patients admitted to hospital informally, but who lack the capacity to consent or to object to continued detention, and be able to do so on applications from representatives of such people. Other suggestions made: Social Security tribunals should be enabled again to take account of changed circumstances since the initial decision; Asylum Support Adjudicators should be entitled to consider the adequacy of accommodation, and dispersal; the VAT and Duties Tribunal's limited jurisdiction under s.83 of the Value Added Tax Act 1994 should be extended to avoid the need for parallel judicial review proceedings; Liberty suggested that the Interception of Communications Tribunal and the Proscribed Organisations Appeal Commission should be enabled to substitute its own decision on the basis of the facts (instead of only being able to find against the Secretary of State if he had acted unreasonably); and in relation to education admission panels, it was suggested that the new "reasonable in the circumstances" test was too limited, and did not allow the panel to consider the circumstances of an individual child.
F.5	Are there areas where tribunals are undesirably limited by the remedies available to them? 22 commented on this question. The Council on Tribunals noted that the need for some tribunals to have enforcement powers had sometimes been raised, as had powers to ensure compliance with directions (since only some tribunals have strike-out or costs powers). Some (End note 62.) thought that the Employment Tribunals should have enforcement powers (or that the registration fee for enforcement in the county courts should be abolished). It was also suggested that employment tribunals should: have powers to award greater or unlimited amounts in basic or unfair dismissal cases; be empowered to order that discriminatory collective agreements be rewritten, and given powers to enforce that; be enabled to award back pay for pay discrimination arising from discriminatory collective agreements; be able to award punitive damages against employers for bad employment practice; and in cases involving insolvent companies, be enabled to make sums payable due immediately (End note 63.). It was suggested (End note 64.) that the powers of the Data Protection Tribunal should be extended to give remedies such as injunctive relief eg enforcement notices requiring data controllers to refrain from things other than processing personal data. It was suggested (End note 65.) that the Special Educational Needs Tribunal should have powers to provide interim relief.
F.6	Could the range of remedies available to those who have a dispute to be resolved usefully be widened eg to allow tribunals to refer to cases to mediation, or to supervise negotiated settlements, or to embrace other forms of alternative dispute resolution (ADR)? 42 responded on this question. As recorded under question D.2 many saw merit in the greater use of ADR in tribunal cases (although some argued that ADR was not appropriate in administrative law, generally or in particular areas). Many respondents therefore saw merit in tribunals creating scope for its use, and facilitating it. But the majority took the view that ADR should be a voluntary step before a hearing and carried out outside the tribunal. None favoured compulsory reference to ADR (and one respondent (End note 66.)pointed out that there might be a reduction of published, precedent setting cases if ADR was widely used). The risk that ADR might take longer or be more expensive than tribunal adjudication was also pointed out.
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? 24 responded to this question. Three made suggestions for stronger or more flexible interlocutory proceedings, also dealt with under B.8. Most other views related to particular tribunals. The Inland Revenue pointed out that the current division of cases between tax tribunals enabled appellants to forum- shop undesirably between the Special and General Commissioners. The Treasury Solicitor's Department suggested that the tools and processes of planning inquiries were not apt for heavy and complex matters. The Shropshire Health Authority pointed out that there was no mechanism to withdraw a complaint made against the General Practitioner to the NHS Discipline Committee should the Health Authority decide to do so. The Foreign Compensation Commission suggested that the Commission needed an enhanced research capacity, as well as better IT. The Society of Editors argued for a principle of open tribunal justice, with press and public access to proceedings and to tribunal documentation, with tribunals actively assisting the media to report proceedings and their outcome. There should be a specific right to oppose exclusion and reporting restrictions, with fast-track appeals. Tribunals should be encouraged to entertain informal representations against exclusion or restrictions. Departments should have systems encouraging openness in related matters. Other respondents made general comments on a particular tribunal, or general comments, without making particular suggestions for improvement.
F.8	Are the jurisdictional boundaries between the tribunal system and the ordinary and higher courts as clear as they should be? 41 made comments directly relating to this area, although suggestions dealt with under D.4 or F.4 for more coherent grouping or jurisdiction for tribunals often involved relationships with the court system. In particular, changes to the jurisdiction of the Employment Tribunals would involve transfers from the county courts. A number of respondents (End note 67.) pointed out that there was a patchwork of jurisdictions involving the Leasehold Valuation Tribunals, the Lands Tribunal, and the courts in a range of property and housing issues. There were suggestions for a separate housing court, or for all housing matters to be heard by a new tribunal. Prof. Macrory (and in separate correspondence Prof. Grant of Cambridge University) pointed to confusions in the area of the environment or planning, with some cases going to the magistrates' courts (which are not equipped to deal with them effectively), and some to the Secretary of State. Prof. Macrory suggested that there should be a new Environmental Appeals Tribunal to deal with appeals concerning regulatory licences and related matters. That might in the future be expanded to be a combined environmental and planning body, by absorbing the planning inspectorate. Two local authorities suggested that a tribunal might be a more appropriate route of appeal for some licensing decisions (liquor, public music, and dance) than the current routes through the courts. A further point made in relation to Employment Tribunals, (End note 68.) was that allegations of disability discrimination can be brought before the Employment Tribunal, but that actions for personal injury went to the county court, creating an unfortunate overlap. A member of the Appeal Tribunals (NI) pointed to difficulties with the child support system, as parents have to deal with both tribunals and courts, and suggested that a family tribunal with a broad jurisdiction to deal with all the problems of family breakdown would be a more appropriate decision-making body. Two general points were made. The Council of the Sheriffs' Association expressed concern about tribunals handling disputes between individuals. It suggested that all such disputes should remain with the courts, with tribunals being restricted to administrative areas. The Treasury Solicitor's Department suggested that where tribunal and court procedures overlapped, suitable judges should sit as chairmen, to determine both aspects simultaneously.
F.9	Do they provide a practical, proportionate and sufficiently expert mechanism for the coherent development of the law? 19 commented on this question. Almost all thought that the current arrangements were, at least in broad terms, satisfactory. A Mental Health Review Tribunal Regional Chairman referred to the difficulties arising from the absence of a right of appeal from MHRTs, dealt with under F.2. One tribunal member suggested that there was little contact between tribunal members and judges in the ordinary courts, and suggested that a tribunal members' association might have a valuable role to play in fostering such contacts.
F.10	In particular, can the appeal routes from tribunals be rationalised? 39 commented on this question. Almost all agreed that the current arrangements were a confusing hotch- potch. First, as noted under F.2, many favoured the extension of second-tier appeal tribunals, to cover some or all cases. Some made suggestions for how that appeal should operate. The Legal Action Group suggested a generic second-tier tribunal for smaller tribunal tribunals operating with similar provisions to the Immigration Appeal Tribunal, the Social Security and Child Support Commissioners and the Employment Appeal Tribunal. Appeals should be on a point of law only, with leave or following a EAT preliminary hearing. The test should be no higher than a "realistic prospect of success". Any refusal of leave should be with reasons. Time limits should allow for the need for legal representation, and therefore be not less than 6 weeks. The Appeal Service pointed out that the procedures for handling appeals to the Social Security and Child Support Commissioners were complex. It suggested combining the administration of both first and second tribunals (since many members sat on both), and the devolution of second-tier hearings to regional centres for local hearings. Most suggested that the current forms of recourse available from the higher courts should be simplified. Those who commented thought that judicial review was not an adequate substitute for a right of appeal, and some pointed to particularly acute confusions in the area of immigration. There was also a consensus in favour of replacing all current arrangements for an appeal by way of case stated. (End note 69.) Mr Justice Sullivan recommended that s.11 of the Tribunals and Inquiries Act 1992 should be amended to provide for a standard right of appeal from tribunals to the Administrative Court. Legislation should prescribe: the time within which the appeal may be made; who is entitled to bring an appeal; the grounds on which the appeal can be made; and the court's powers. He recommended a general time limit of, perhaps, 6 weeks from the Statement of Reasons. There should be single ground of appeal to the effect that the tribunal's decision was unlawful. The court should be empowered: to quash the decision in whole or in part; to remit it for reconsideration; to give declaratory relief; or no relief. He acknowledged that some additional provisions might need to be made for tribunals with particular needs. The Court of Appeal response (End note 70.) argued that there should be a uniform system for the formulation of tribunal decisions; a short first one, with detailed reasons being provided on request, and with the detailed reasons being susceptible of appeal on a point of law. The Court thought, however, that a strong case would be needed for its own role to be extended beyond hearing second appeals only where they raised important points of principle or practice, or for other compelling reasons. The Court invited the review to consider the application of s.55 of the Access to Justice Act 1999 to second appeals from tribunals (via the High Court or a county court), as being possibly excessively rigorous in ECHR terms. The National Health Service Tribunal suggested that the Tribunals and Inquiries Act provisions might not be sufficient for a tribunal which had powers to disqualify for fraud. The Bar Council suggested that appeals from the General Medical Council should go to a two-judge court in the High Court, and not to the Privy Council.

SECTION G - GETTING THE RIGHT MEMBERS

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? 114 comments were received on this question. 87 thought the current arrangements did not ensure an adequate supply of appropriately qualified members. Three thought this was because the status of the tribunal system was an impediment to attracting the higher calibre of applicants, and that pay rates needed to be more competitive (6). 39 thought tribunal members were not adequately representative of the community: there was a lack of ethnic minority members (21); disabled members (4); and younger members (4), perhaps due to a lack of spare time (4). Of the 27 who thought the current arrangements were adequate: 21 (End note 71.)commented generally that they experienced no problems in recruiting members of the right quality and skills; 2 said they applied the Nolan principles of public appointment; 2 thought the role of a tribunal member lent itself to semi-retired members of the legal profession; and 2 thought that although the members recruited were of a good standard, there should be a complaints procedure in place.
G.2	If not, what changes in any of: responsibilities for appointment; recruitment procedures; career structure for members; qualifications for appointments; and any other matters would improve the current position? 82 responses were received to this question. Of those who commented on the responsibilities for appointment, all (12) thought a centralised (12), and shorter (6) recruitment process should be established. 15 considered the recruitment procedure should be transparent, with open competition to attract representatives from all sections of society (11), including younger members (2). There should be a formal, consistent procedure (7). There should be wider advertisement in the press (5), including local, and minority publications (5). Three suggested community, or user, groups should be approached for nominations (one suggested personal recommendation). Two thought block recruitment should be avoided and that appointment should be restricted to need (4). Of the 5 who commented on career structure, three thought cross-membership of tribunals would provide an enhanced career structure. Two considered there was currently no career structure. Three thought particular qualifications should be a pre-requisite for appointment. There was some general comment (6) that an improved pay structure, or pension provision, would assist, as would an increase in the standing currently enjoyed by tribunals, which resulted in them often failing to attract the best candidates.
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? 72 respondents commented on this question. All considered non-lawyer members to serve a useful purpose. Their distinctive roles were considered to be: their expertise (11); experience of local conditions (9); ability to assess the credibility of parties and witnesses (5), and the reasonableness of the case (5); and their practical experience (5). General comments included them bringing common sense and the concepts of fairness, independence, informality and impartiality to the tribunal. Others thought their life experience would be invaluable. It was also considered that lay members provided a useful means of disseminating knowledge about the tribunal to the wider community. Of the 7 who commented about how the role was to be specified, one thought professional qualifications should be laid down in the tribunal rules. The other 6 suggested that it should be specified that relevant experience or expertise was necessary. A further three thought the role should be clarified so that members could take a more active part. 9 commented specifically as to whether a distinctive appointment procedure was necessary: 5 thought it was, 4 did not.

SECTION H - PROPER TRAINING

H.1	What sorts of training do tribunal members need to act effectively as chairmen and chairwomen or as members in their various roles? 97 respondents remarked on this question. The focus of many comments was the skills needed for the effective conduct of an interventionist or inquisitorial hearing (21) - including how to act judicially (4), with specific mention made about listening, communication and general interpersonal or customer care skills (25). Issues highlighted individually were: cultural issues (4); discrimination (3); disability awareness (8); equality (9); and human rights (7). The preparation and presentation of reasoned arguments were mentioned by 15. 4 mentioned file management or record keeping. 35 considered training in relevant legislation (including powers and duties) to be important and a further 18 suggested training in practice and procedure, including rules of evidence, was needed. Of those who commented, 5 thought induction training should be provided. Four considered training should be ongoing and refresher training was thought to be important by 6. A national training scheme was mentioned by two and three thought a members' journal would be of assistance, as would observing a tribunal or role play (6). 4 thought training should be mandatory.
H.2	Who should be responsible for: setting broad policy and approaches for training; determining the detailed content of training courses; and delivering training? 103 responses were received. Of the 61 who responded in general terms, 4 thought the President (in consultation with the members) should take overall charge of training policy and delivery (End note 72.); and 4 thought this was the responsibility for the tribunal management, perhaps supplemented by external tutors (a further 2). 13 thought there was a role for a central independent organisation. Of those, 5 suggested this was a role for an expanded JSB; and 8 thought a new body should be established, along the lines of a Tribunal Studies Board, drawn from all legal systems within the UK, composed of experts in the field, and with input from non-legally qualified commentators. (End note 73.) 8 thought there was a specific role for the President (assisted either by the JSB or the sponsoring department) to be responsible for setting broad policy and approaches for training. A further 4 thought this was for the tribunal (one of whom suggested the members branch of the tribunal). 4 considered the President and the senior administrator should be responsible for determining the detailed content of training courses. The other 10 responses varied from the suggestion that training committees be established, to the provision of training being demand led. 11 considered training should be delivered in-house (some suggested input from specialist or user groups would assist). A further 6 suggested variously that regional chairmen, tribunal members or judges should deliver the training.
H.3	How should the effectiveness and value for money of the training that is provided be tested? 41 respondents commented on this question. 13 considered the effectiveness of training could be tested through evaluation questionnaires provided to delegates. 9 respondents considered independent observation of hearings and members' performance would be useful (9), as was checking the quality and consistency of reasoned decisions. Two respondents each suggested useful feed-back would be provided by: canvassing users; monitoring complaints; and an external independent report. Only two respondents commented specifically on value for money: both from tribunals (End note 74.) which provided in-house training. This was considered to offer good value for money.
H.4	What training is needed for tribunal support staff? How is that best determined and delivered? 33 respondents commented on this question. 18 considered it important that tribunal staff received training in the overall work of the tribunal. Particular emphasis was placed on training in the legislation, statutory procedures and rules governing the working of individual tribunals. 8 respondents thought training in the effective use of modern information technology to be important. 15 made comment on training in customer service/care. Specific mention of disability awareness training was mentioned by 4 respondents. All those who commented (7) considered that training in procedures and working practices should be provided by the administrators of the tribunal, perhaps with judicial guidance. Government departments should provide direction on standards. Training provided by specialists was suggested by only one respondent (End note 75.)

SECTION I - ADDING NEW JURISDICTIONS

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? 28 commented on this question (and on the related topics in response sections D and F). There was general agreement that judicial review was not an adequate substitute for a right of appeal. That gave a more complete remedy, was closer to the requirements of the ECHR, more accessible, and cheaper. The Council on Tribunals suggested that a right of appeal was needed whenever a decision affected the citizen's liberty, livelihood, status or other basic rights.
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? The Association of District Chairmen noted that the ordinary courts were costly, and perceived as being unavailable to unrepresented members of the public. Extending access to justice at reasonable cost was therefore more likely to be achieved through a tribunal. The Council on Tribunals suggest that the right principle was whether the case raised matters of law of sufficient gravity and weight to require a court. Care should be taken not to proliferate tribunals unnecessarily.
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? Three responded to this question. The Council on Tribunals noted that it was difficult to generalise, but agreed that a checklist for policy makers considering changes to the law which would involve changes to appeal rights would help.

SECTION J - TESTING HOW THE SYSTEM PERFORMS

1. Advice Services Alliance
2. Liverpool Law School, National Parking Adjudicator
3. The Writers to the Signet Society.
4. Law Centres Federation, Law Society, Mr Justice Collins
5. Association of District Chairmen - Appeals Service
6. Chinese in Britain Forum
7. Professor Peter Cane
8. Mrs S Elson, Solicitors' Disciplinary Tribunal, Occupational Pensions Regulatory Authority, Association of District Chairmen - Appeals Service, R Long, President Southern & South Eastern RAP.
9. Including the Council on Tribunals, Legal Action Group, Law Centres Federation, 3 tribunals or tribunal members, and 3 user groups.
10. Mostly advice or user groups.
11. Including the Bar Council, The Law Society. The Bar Council suggested that there should be provision for interim relief.
12. Including the Bar Council, the National Association of Inspection and Registration Officers, and the National Group of Heads of Registration and Inspection.
13. Including the Bar Council, The Law Society, a MHRT Regional Chairman, and MIND; and War Pensions (The Royal British Legion).
14. Child Support Agency, Mr John Butterworth, Council of HM Circuit Judges, NASUWT,
15. Law Centres Federation, Gateshead MBC
16. District Judge Tennant, Council of HM Circuit Judges, Law Society - Local Government, Lincolnshire CC, Local Government Association
17. Derby City Council Welfare Rights Service
18. Council of HM Circuit Judges, Planning and Water Appeals Commissions Northern Ireland
19. Although one respondent pointed out that use of IT during the hearing could prevent use of eye contact.
20. Legal Action Group
21. Linolnshire County Council
22. Rent Assessment Panel Sponsorship Branch, DTI.
23. The Foreign Compensation Commission suggested this might be feasible in their jurisdiction.
24. The National Parking Appeals Service and the Pensions Appeal Tribunal
25. By the Legal Action Group.
26. His Honour Judge Anthony Thorpe
27. Prof. Peter Cane
28. District Judge Tennant
29. NACAB
30. Bar Council; Inland Revenue
31. Including The Law Society, the VAT Practitioners' Group, and the Chartered Institute of Taxation.
32. Including Pump Court Tax Chambers, the Chartered Institute of Taxation, and the Institute of Chartered Accountants.
33. Including the Law Society, a MHRT Regional Chairman, and MIND
34. Including the Legal Action Group.
35. Including the National Association of Valuation Tribunals and the Society of Clerks Valuation Tribunals.
36. Local Government Ombudsman, Planning and Water Appeals Commissions NI, the Traffic Commissioners, and the Chinese in Britain Forum.
37. Including the Advice Services Alliance.
38. By the NASUWT.
39. The Bar Council.
40. MIND.
41. Including the DTI, the Law Centres Federation, the Chartered Institute of Personnel Development, and the Law Society and The Law Society of Scotland. The President of the Employment Tribunals and a Regional Chairman pointed out that ET should be kept separate from administrative tribunals.
42. Including the CBI.
43. Including the Council of Tribunals, Public Accounts Committee, Council of HM Circuit Judges, Faculty of Advocates, The Law Society, The Law Society of Scotland, the Legal Action Group, the Writers to the Signet Society, the British Property Federation, the Chartered Institute of Taxation, and MIND.
44. Including the Child Support Agency, DTI, CBI, the Ministry of Defence, and 6 tribunals or tribunal members.
45. Including 21 tribunals and 16 user or advisory groups.
46. Including the DTI, Valuation Office Agency, and 10 tribunals or tribunal members in relation to their own independence.
47. Including the Faculty of Advocates, the Scottish Law Agents Society, 3 user groups, and 7 tribunals or tribunal members.
48. Including 14 user and advisor groups, and 7 tribunals or tribunal members.
49. Including The Law Society.
50. Including the Council on Tribunals, DTI, Valuation Office Agency, The Law Society, the Scottish Law Agents Society, the Public and Commercial Services Union, the Writers to the Signet Society and 15 tribunals or tribunal members.
51. Including The Law Society, the Chartered Institute of Taxation, and the Royal Institute of Chartered Surveyors.
52. Including the British Property Federation, and the Royal Institute of Chartered Surveyors (with others supporting the same view in responses on other questions).
53. By the President of the Pen