Chapter One - Introduction
1.1 The
last 50 years have brought an accelerating accumulation of tribunals
as bodies whose function it is to decide disputes that would otherwise
have to go to the courts. Together they form the largest part of the
civil justice system in England and Wales, hearing about a million cases
each year. That number of cases alone makes their work of great importance
to our society, since more of us bring a case before a tribunal than
go to any other part of the justice system. Their collective impact
is immense.
1.2 Choosing a tribunal to decide
disputes should bring two distinctive advantages for users. First, tribunal
decisions are often made jointly by a panel of people who pool legal
and other expert knowledge, and are the better for that range of skills.
Secondly, tribunals’ procedures and approach to overseeing the
preparation of cases and their hearing can be simpler and more informal
than the courts, even after the civil justice reforms. Most users ought
therefore to be capable of preparing and presenting their cases to the
tribunal themselves, providing they have the right kind of help. Enabling
that kind of direct participation is an important justification for
establishing tribunals at all.
1.3 What we have found, however,
is that the present collection of tribunals has grown up in an almost
entirely haphazard way. Individual tribunals were set up, and usually
administered by departments, as they developed new statutory schemes
and procedures. The result is a collection of tribunals, mostly administered
by departments, with wide variations of practice and approach, and almost
no coherence. The current arrangements seem to us to have been developed
to meet the needs and conveniences of the departments and other bodies
which run tribunals, rather than the needs of the user. That levels
of dissatisfaction are not higher is largely due to the commitment and
resourcefulness of tribunal members, and of those who work for them;
and everything which follows must be read in the light of the important
public service that they render.
1.4 We do not believe that the current
arrangements meet what the modern user needs and expects from an appeal
system running in parallel to the courts. First, users need to be sure,
as they currently cannot be, that decisions in their cases are being
taken by people with no links with the body they are appealing against.
Secondly, a more coherent framework for tribunals would create real
opportunities for improvement in the quality of services than can be
achieved by tribunals acting separately. Thirdly, that framework will
enable them to develop a more coherent approach to the services which
users must receive if they are to be enabled to prepare and present
cases themselves. Fourthly, a user-oriented service needs to be much
clearer than it is now in telling users what services they can expect,
and what to do if the standards of these services are not met.
1.5 We were set up to look at the
tribunals for which the UK Government is responsible. The devolution
implications of our recommendations are therefore discussed in Chapter
Eleven.
Scope
1.6 We
must explain the bodies with which we deal. We have concentrated on
those statutory bodies which provide a specialised machinery for the
adjudication of cases that would otherwise be decided by the civil courts.
That is a considerable reduction on the bodies listed at Annex A to
the Consultation Paper which we issued shortly after starting work.
That listed 83 bodies under the supervision of the Council on Tribunals;
eight bodies not under the Council’s supervision, but which appeared
otherwise similar to others that were; 14 bodies proposed by current
legislation or in the course of implementation; and 32 other bodies
on which it was obviously possible that the Review might have a bearing
- a grand total of 137. Even this remit was significantly narrower than
that which had been given to the Franks Committee1
which had been commissioned to examine "such administrative procedures
as include the holding of an inquiry or hearing by or on behalf of a
Minister on an appeal or as the result of objections or representations,
and in particular the procedure for the compulsory purchase of land".
Our terms do not include the work of the Planning Inspectorate which
bears close similarities to some tribunal work.
1.7 Some of the bodies currently
supervised by the Council on Tribunals, and more of the related bodies
we identified in our Consultation Paper, are regulatory or investigatory
bodies which fall outside our terms of reference. They are discussed
further in Chapter Twelve.
1.8 Some other bodies that we identified
also fall outside our terms of reference because, though statutory,
they are not appointed by a minister or for the purposes of a minister’s
functions, such as the domestic disciplinary bodies for some professions.
We suggest in Chapter Twelve, however, that they may benefit by following
some of the recommendations in the report.
1.9 This reduces the number of bodies
we are considering to 70. There is a further distinction which must
be made, when considering tribunals and their procedure. The great majority
of tribunals, properly so called, are concerned with the resolution
of disputes between the citizen (whether an individual or a corporation)
and the state, from minor disputes about the late submission of tax
returns to reviewing detention under the provisions of the mental health
legislation. Some, however, deal with disputes between individual parties,
such as employment disputes or those which concern the mutual obligations
of landlords and leaseholders. This was a distinction that had little
importance for Franks, who did not consider the tribunals in the industrial
field and in any event there were then comparatively few other party
and party tribunals. In the report we define the characteristics which
we consider should be common to all tribunals and the respects in which
a distinction needs to be drawn between citizen and state, and party
and party, tribunals.
Tribunals or courts
1.10 It is important to be clear
what work should be done by tribunals, rather than by courts. Franks
did not consider in detail what principles should guide the allocation
of cases to tribunals, accepting that the already large number of cases
decided by tribunals in 1957 made the amalgamation of tribunals and
courts impracticable. As the areas in which some kind of appeal is required
proliferate, Parliament, policymakers and users should have principles
to guide that allocation. We suggest that there should be three tests
of whether tribunals rather than courts should decide cases.
Participation
1.11 First, the widest common theme
in current tribunals is the aim that users should be able to prepare
and present their own cases effectively, if helped by good-quality,
imaginatively presented information, and by expert procedural help from
tribunal staff and substantive assistance from advice services. We think
the element of direct participation is particularly important in the
field of disputes between the citizen and the state. We have found,
however, that in almost all areas the decision-making processes, and
the administrative support which underlies them, do not meet the peculiar
challenges the overall aim imposes. We propose a programme of reform
which should enable users to play their part better. The use of tribunals
to decide disputes should be considered when the factual and legal issues
raised by the majority of cases to be brought under proposed legislation
are unlikely to be so complex as to prevent users from preparing their
own cases and presenting them to the tribunal themselves, if properly
helped.
The need for special
expertise
1.12 Where the civil courts require
expert opinion on the facts of the case, they generally rely on the
evidence produced by the parties - increasingly jointly — or on
a court-appointed assessor. Tribunals offer a different opportunity,
by permitting decisions to be reached by a panel of people with a range
of qualifications and expertise. A larger decision-taking body is obviously
likely to be more expensive. But users clearly feel that the greater
expertise makes for better decisions. They also say that having more
members, and non-lawyers, on the panel makes it easier for at least
some users to present their cases. The second reason why cases should
be considered for allocation to a tribunal is if expertise, or accessibility
to users, is a major issue in the resolution of the relevant disputes.
Expertise in administrative
law
1.13 Thirdly, tribunals can be particularly
effective in dealing with the mixture of fact and law often required
to consider decisions taken by administrative or regulatory authorities.
Our recommendations for a more coherent system will increase that effectiveness.
Where any legislation establishes a statutory scheme involving decisions
by an arm of government, the responsible minister should explicitly
consider whether a right of appeal is required, on the basis that there
should be strong specific arguments if an appeal route is not to be
created, and that a tribunal route, rather than redress in the courts,
should be the normal option in the interests of accessibility. It should
not be regarded as satisfactory to leave judicial review as the citizen’s
only recourse, since that is expensive and difficult for the unassisted.
Distinctiveness
1.14 Some elements in the programme
of reform we propose could be picked out for separate implementation.
That would be highly undesirable: it is only together that they could
operate to develop a sufficiently distinctive approach to the management,
preparation and hearing of cases to enable users to act on their own.
We think that is important for the tribunals themselves, if they are
to have an increased confidence in the quality and value of what they
do. Many of the services they already provide for users are excellent,
and achieved by hard work and dedication. They are, however, too much
overshadowed by the courts: we want the result of this Review to be
a renewed sense amongst tribunals and their staff that they are there
to do different things from the courts, and in different ways, but with
equal independence. In many respects, it is a more difficult task.
Coherence
1.15 The necessary skills for tribunal
decision-makers, and the services provided by their staff, will be greatly
improved if they are brought together to form a coherent system and
services; and without that coherence the improvements which are necessary
for tribunals to remain a distinctive and viable alternative to courts
cannot be achieved. We start to explain why with a brief appraisal of
tribunals as we have found them. More detailed views on individual tribunals
can be found in Part II of the report.
The tribunal world today2
1.16 The Appeals Service, by far
the largest tribunal, deals with about one-quarter of all cases. At
the other extreme, there are some tribunals which have not sat for years.
The subjects tribunals deal with cover the whole range of political
and social life, including social security benefits, health, education,
tax, agriculture, criminal injuries compensation, immigration and asylum,
rents, and parking. Against that background, no generalisation will
be true of all of them or in all cases. But there are enough resemblances
to make it worth trying to describe the tribunal world in broad terms.
This section sets out what we have seen for ourselves, what we have
learned from the responses to the consultation document we issued in
June 2000 and from material given to us by the Council on Tribunals,
and what emerged from the findings of the research study undertaken
for us by MORI.
1.17 The first point to note is the
public-spiritedness and conscientiousness of most of the chairmen, members
and staff we met. Although we have criticisms of many of the tribunals,
we would like to pay tribute to the individuals who work within them.
1.18 The most striking feature of
tribunals is their isolation. This is a serious problem. Apart from
the narrowness of outlook which it engenders, it leads to duplication
of effort. Each tribunal invents its own IT, its own internal processes,
and its own service standards, though not all of them do have such standards.
There is under-investment in training in many tribunals. The bigger
tribunals have good accommodation, frequently under-used; the smaller
ones are scratching around for suitable venues for hearings. The Appeals
Service has invested in relatively up-to-date IT; most other tribunals’
IT is much more primitive and is years behind the systems we found in
Australia. Most tribunals find it difficult to retain suitable staff,
especially in London, because of the limited career prospects they can
offer. In most cases, tribunals feel that they are at the back of the
queue for resources.
The
relationship with departments
1.19 There is also an uneasy relationship
between most tribunals and the departments on whose decisions they are
adjudicating. In those tribunals which are paid for by the sponsoring
departments, the chairmen and members feel that they cannot be seen
as independent, however impartial they are, and however scrupulous departments
are. Indeed, plainly they are not independent. Even in tribunals which
are no longer paid for by "their" departments, there can be
an unhealthy closeness. For example, the General Commissioners of Income
Tax, although now sponsored by the Lord Chancellor’s Department,
are still wholly dependent on the Inland Revenue for case listing and
for the flow of information to enable them to take their decisions.
At the same time, paradoxically, many tribunals do not enter into the
appropriate dialogue which would enable departments to learn from adverse
tribunal decisions and thereby to improve their primary decision-making.
The relationship with
users
1.20 Tribunals are in general careful
about reaching their decisions. But there can be unacceptable delays
in resolving cases. Sometimes delay may actually suit the user (some
tax cases, for example, and immigration cases); more often delay is
at best irritating and at worst distressing for the user. Either way
it is not in the interests of justice for cases to be allowed to drift.
The causes of drift include: inefficient document-handling systems which
result in parties at the hearing discovering that they do not all have
the same bundle of papers; poor listing practices; procedural default
by the department being appealed against; over-readiness to grant adjournments,
sometimes on flimsy grounds; reluctance to give a decision on the day;
and post-hearing inefficiencies. For example, decisions are sometimes
written in long-hand, sent in weeks after the hearing, and then sent
to a remote typing service. All of these are remediable, and many tribunals
are working hard to reduce the delays which are within their own control.
1.21 To the user, however, the length
of time which matters is the time between receiving the original decision
by the department and the final implementation of the tribunal’s
decision on the appeal. Much of the delay we have seen occurs between
the primary decision-maker and the tribunal, and between the tribunal
and the appellate body. The tribunal process needs to be viewed in that
wider context. Some tribunals and departments are now conducting end-to-end
reviews of the process from first decision to ultimate implementation.
We commend this initiative.
1.22 During the tribunal process,
the information provided to the user is patchy. Departments do not always
provide reasons for their decisions, nor do they always explain how
to appeal against their decisions. Tribunals’ communications with
users are sometimes terse and impersonal; some letters are still written
in officialese; and telephone arrangements can be amateur. Users frequently
feel in the dark about whether they have a good case or not, and about
where their case has gone to, and why it is taking so long. Departments
and tribunals are, however, increasingly aware that they should provide
clear, timely information in a user-friendly way. Our recommendations
in Chapter Four draw on some of the good practices we have seen and
are intended to help departments and tribunals to improve further.
Procedures
1.23 At the hearings, users can experience
some quite old-fashioned processes. Examples include a legal representative
reading out in full a paper submission which is already in front of
all the parties; witnesses being asked to read out their written statements;
or witnesses being taken slowly through detailed, uncontroversial, factual
material where simple confirmation that the position is as set out in
the documents would suffice.
1.24 In some tribunals, proceedings
are informal. In others, they are at least as formal as those of the
courts. Normally, users welcome informality. They may, however, be disconcerted
if the proceedings are totally unstructured, because they are then uncertain
when to bring in particular points. The MORI research study found that
approaches sometimes differ within the same tribunal.
1.25 However informal the atmosphere,
and however sympathetic the chairmen and members are to the user, the
experience of a tribunal hearing is extremely stressful for most users.
They value the option of presenting their case personally, and in general
they feel that they are given a fair hearing. But the issue, whether
it is their tax bill or the level of their social security benefits,
the schooling of their child or the level of their rent, matters personally
to them, and the hearing is an important and possibly daunting occasion.
Perhaps the biggest challenge for tribunals is to enable users who feel
that they have been unfairly treated to come to the tribunal without
undue apprehension, and to leave feeling that they have been given a
fair opportunity to put their case.
1.26 Throughout Parts I and II of
this Report bold numerals in square brackets identify corresponding
recommendations summarised in Part III.
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