Chapter Two - A more independent system
2.1 This chapter
records our concerns that tribunals currently administered by departments
with policy responsibilities or whose decisions are tested in the tribunal,
are not sufficiently independent, and our recommendations that the Lord
Chancellor should assume responsibility for all tribunals, and for making
all appointments to them.
2.2 A clear majority
of those who responded to our Consultation Paper thought that tribunals
generally, or particular tribunals, were not perceived as independent,
and thought that the disadvantages of Government departments with policy
responsibilities also providing administrative support and funding outweighed
the advantages. Concerns about all aspects were particularly strong
in responses from users and their advisers, and from tribunal members.
As Lord Denning said, "Justice is rooted in confidence".
2.3 Our work has
shown that there are significant doubts about whether the current arrangements
for tribunals give users the necessary confidence in their independence
and effectiveness. That is confirmed by a number of challenges to various
aspects of their constitution under the Human Rights Act 1998. In many
areas, tribunals represent the only, or the only practicable, remedy
a citizen has if concerned about a decision by a state body or agency.
We will develop later in the report recommendations for better enabling
citizens to bring those challenges themselves. That is essential in
building the right balance of rights and responsibilities. But it would
be wholly ineffective if users did not feel that tribunals are genuinely
and demonstrably independent.
Other approaches
2.4 In developing
views on an effective and independent system of tribunal justice, it
is helpful to take notice of two approaches very different from the
developments in the United Kingdom (UK). Many countries whose legal
systems have developed from Roman law have a separate body of administrative
law, and separate courts to administer it. Whilst we took steps to acquaint
ourselves with current developments in the major European systems, it
was clear from the outset that the legal, practical and resource demands
of seeking to assimilate to such a civilian approach a tribunal system
which has developed on common law principles would be wholly disproportionate
to the problems we faced.
2.5 We looked in
great detail at an alternative approach in a common law jurisdiction,
Australia. There, the duties and responsibilities of the constituent
parts of the Federation are guided by a written constitution. That draws
a clear distinction between the judiciary and the executive, and tribunals
are part of the latter, not the former. They are charged clearly with
administrative duties, putting themselves in the shoes of the relevant
Government official, and required to act in accordance with government
policies. Particularly over the last 25 years, Australian tribunals
have developed an admirable and distinctive approach to their role,
in merits review. There is much to be gained from comparing that system
with ours. It is even possible that the UK system might have developed
in a similar way. That was considered but rejected by the Franks committee3.
Franks
2.6 The independence
of tribunals is a key issue, and we think it worth reproducing what
Sir Oliver Franks said:
"Tribunals as machinery for
adjudication
Tribunals are not ordinary courts, but
neither are they appendages of Government departments. Much of the
official evidence, including that of the Joint Permanent Secretary
to the Treasury, appeared to reflect the view that tribunals should
properly be regarded as part of the machinery of administration, for
which the Government must retain a close and continuing responsibility.
Thus, for example, tribunals in the social service field would be
regarded as adjuncts to the administration of the services themselves.
We do not accept this view. We consider that tribunals should properly
be regarded as machinery provided by Parliament for adjudication rather
than as part of the machinery of administration. The essential point
is that in all these cases Parliament has deliberately provided for
a decision outside and independent of the Department concerned, either
at first instance (for example in the case of Rent Tribunals and the
Licensing Authorities for Public Service and Goods Vehicles) or on
appeal from a decision of a Minister or of an official in a special
statutory position (for example a valuation officer or an insurance
officer). Although the relevant statutes do not in all cases expressly
enact that tribunals are to consist entirely of persons outside the
Government service, the use of the term "tribunal" in legislation
undoubtedly bears this connotation, and the intention of Parliament
to provide for the independence of tribunals is clear and unmistakable."4
2.7 Franks considered
centralising administrative support for tribunals under the Lord Chancellor.
He attributed the belief in the minds of some people that tribunals
were dependent on or influenced by Government departments to the fact
that most clerks of tribunals were provided by them. He also thought
that such centralisation would have the advantage of further enhancing
the independence of tribunals, and it would be more appropriate for
independent clerks to advise and help applicants than departmental clerks
to do so.
2.8 On balance, however,
Franks rejected this idea on practical grounds: because it was "difficult
to see how any reasonable prospects of a career could be held out to
the members of such a general service"; because "it would
be difficult to arrange sittings for the various tribunals in one area
in such a way that the clerks were fully occupied and the clerks could
meet when most convenient to the members"; and because "it
would no longer be possible for the social service Departments to give
some members of their staff a period of service as clerks of tribunals,
which is doubtless valuable in developing the outlook appropriate to
the administration of a social service."5
That, of course, predated the concentration — over twenty years
— of responsibility for the administration of the county, Crown
and magistrates’ courts in the Lord Chancellor’s Department;
and the creation of the Court Service.
2.9 Although they
relate to issues we discuss more generally in Chapter Three, it may
be convenient to note here that two of these arguments have been superseded
by the growth in the numbers of people working in support of tribunals,
and of cases throughout the country. We estimate (although the figures
are by no means clear) that between 2,500 and 3,500 people are now involved
wholly or substantially on tribunal work. They should form a body of
sufficient size to offer an interesting range of jobs, and career progression.
Effectively organised, there are now sufficient tribunal cases across
the country for staff to be fully occupied at local or regional level.
The third problem would be solved by an active programme of secondments.
2.10 While recommending
that support for tribunals should continue to be provided by their sponsoring
departments, Franks noted that he had received "no significant
evidence that any influence is exerted upon members of tribunals by
Government Departments", and recommended that clerks’ "duties
and conduct should be regulated on the advice of the Council on Tribunals".
European Convention on
Human Rights
2.11 We are required
by our terms of reference to consider the extent to which "the
administrative and practical arrangements for supporting ... decision-making
procedures meet the requirements of the European Convention of Human
Rights (ECHR) for independence and impartiality". The more we have
endeavoured to do so the greater our doubts have become about the practicality
of offering clear advice on the best arrangements for the future development
of tribunals based narrowly on ECHR issues. The problem is made more
complicated because the Human Rights Act 1998, now in force throughout
the UK, gives competence in human rights matters in the first instance
to UK courts, although they have to "take into account" any
relevant decisions from the Strasbourg Court of Human Rights. The Act
also provides that courts and tribunals are governed by the Human Rights
Act 1998 and have to apply its provisions.
2.12 This is not
the end of the matter, however. The ECHR contains several provisions
which deal with access to justice and we have anxiously considered their
implications for a new Tribunals System. For example, one provision
which may occasionally be relevant is Article 6(3). On its face it refers
to legal assistance in criminal cases but in practice it has been applied
by the Strasbourg Court to civil cases. The case of Airey6
introduces what has come to be known as the "equality of arms"
rule, according to which parties to a case must be procedurally in a
relatively equal position. Whether this is so depends on the facts and
the relative situation of the parties in each particular case. This
has implications in particular for Immigration and Mental Health Review
Tribunals.
2.13 The article
which is most likely to have a direct impact on tribunals proceedings
is Article 6(1), which provides:
"In the determination of his civil
rights and obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law. Judgment
shall be pronounced publicly but the press and public may be excluded
from all or part of the trial in the interest of morals, public order
or national security in a democratic society, where the interests
of juveniles or the protection of the private life of the parties
so require, or to the extent strictly necessary in the opinion of
the court in special circumstances where publicity would prejudice
the interest of justice."
The scope of the
Convention
2.14 Article 6(1)
is not, however, simply applicable across the board to administrative
tribunals and does not apply to some of the tribunals we have to consider.
Its central focus is not administrative law as understood in either
common or civil law jurisdictions, but criminal law and private law
(that is, rights which arise between individuals such as contractual
rights). Decisions of the Strasbourg court have extended the application
of the relevant Article to areas that might not immediately appear to
be questions of private law, such as some aspects of social security.
But the work of some important tribunals, including those dealing with
most aspects of immigration and asylum, tax, and education are —
as the law now stands — not likely to constitute "civil rights
and obligations" in the terms of the Convention, and therefore
do not attract protections under it.
Previous cases
2.15 There is another
sense in which the ECHR is not a particularly helpful guide in attempting
to review overall the workings of a complex collection of judicial bodies.
The text of the ECHR is very broad and general, so that, in interpreting
its provisions, one has to look to the jurisprudence of the Strasbourg
Court of Human Rights. That court treats the text as laying down broad
standards, against which it tests the procedures used in specific
cases, applicable to particular individuals, a method which makes
it difficult to foresee how the Convention will apply generally, or
even in future cases. Great care is therefore needed in attempting to
generalise from an often complex set of particular findings. There are
two further complications. First, the Convention is a living document,
and the attitude of the Strasbourg Court may change from time to time.
Secondly, it is hard to predict the way in which the application of
the Convention will be developed in our own courts. In that context,
we were interested to note the Divisional Court’s recent decision
in the case of Alconbury7.
This case related to the planning system, which is not included in our
terms of reference. The Court held, however, that in considering the
question of impartiality, it would look wider than the objective impartiality
of individuals who form part of the tribunal in question, and concern
itself also with institutional or structural impartiality. We have used
that principle in considering more widely what requirements of independence
should guide the operation of tribunals in the future.
2.16 The most obvious impact of Article
6(1) will be on the tribunal hearing itself. First and foremost, it
will require — just as the common law does — that all those
who hear cases and participate in adjudication must be independent and
impartial. Evidence that the current arrangements are not perceived
to provide independence was provided by respondents to our research
study, one of whom observed of a social security tribunal: "Obviously
it is on their side, they are paying for everybody, aren’t they?".
Because the Strasbourg Court has ruled that, in evaluating the quality
of a hearing, the adjudicative process must be taken as a whole8,
it is particularly important to ensure that each stage of the proceedings
conforms with ECHR standards. The tribunal hearing is of particular
importance here. Its function should be to fulfil the ECHR requirements
of independence and equality. If the tribunal stage of the decision-making
process does not pass these tests, then there is a very real danger
that there will be an unfavourable impact on other stages of the procedures,
which are relatively speedy and by and large work well, but which will
be impugned because of defects in the first-tier hearing. This has already
occurred in a series of cases involving the Parole Board and we would
not wish to see the experience repeated9.
In particular, it would be inappropriate to risk this simply because
there is too close a connection between a tribunal and its sponsoring
department.
Double standards
2.17 A narrowly ECHR-based approach
would, we think, lead to an absurd result. It would be possible for
a government to argue that it is acceptable for there to be an inferior
standard of fairness, or of independence and impartiality, in a tribunal
case because it involved not a dispute in private law between individual
citizens to which the ECHR applied, but a dispute between the citizen
and the state itself in an area to which the ECHR did not apply. That
is an untenable position. We have therefore treated all tribunals alike
when discussing the requirements of a modern service.
As independent as the
courts
2.18 There should
be one guiding principle. In origin, many tribunal functions started
within the administrative process. Tribunals were established because
it was clear that the citizen needed an independent means of challenging
possible mistakes and illegalities which was faster, simpler and cheaper
than recourse to the courts. Tribunals are an alternative to court,
not administrative, processes. They will keep the confidence of users
only in so far as they are seen to demonstrate similar qualities of
independence and impartiality to the courts.
2.19 Demonstrating
those qualities to the individual user in a tribunal case will require
establishing that those who are to decide the case adopt a properly
impartial approach to it, and have no improper links to any of the parties;
that they have not been selected to decide the case because they will
be more likely to come to any particular conclusion; and that they will
not feel beholden to the person who appointed or selected them, or fear
adverse consequences, from the result of the case.
Relations with Government
2.20 There is no
question of the Government improperly attempting to influence individual
decisions. In that sense, tribunal decisions seem to us clearly impartial.
But it cannot be said with confidence that they are demonstrably independent.
Indeed the evidence is to the contrary. For most tribunals, departments
provide administrative support, pay the salaries of members, pay their
expenses, provide accommodation, provide IT support (which is often
in the form of access to departmental systems), are responsible for
some appointments, and promote the legislation which prescribes procedures
to be followed. At best, such arrangements result in tribunals and their
departments being, or appearing to be, common enterprises. At worst,
they make the members of a tribunal feel that they have become identified
with its sponsoring department, and they foster a culture in which the
members feel that their prospects of more interesting work, of progression
in the tribunal, and of appointments elsewhere depend on the departments
against which the cases that they hear are brought. The danger is illustrated
by a recent case which the United Kingdom lost in Strasbourg, on the
ground that the judge had played an active role in the passage of the
law under which the original planning decision was made and was therefore
not seen to be independent10
.
2.21 Departments
often involve senior tribunal members and managers in the development
of new policies and legislation which may be the subject of future appeals.
Where the input of members and managers is sought as part of wider public
consultation, their expertise and experience is valuable, and we would
certainly not wish to diminish the extent to which it is sought. There
is, however, a problem which frequently arises where the same department
is responsible for developing the new initiative and for the administration
of the tribunal. The policy officials can see themselves as approaching
someone who belongs to the same organisation. Where that happens, a
culture develops in which tribunal members can be seen by departments
and ministers as an integral part of the process of policy development
and its subsequent delivery by the policy department. This can compromise
their independence severely.
2.22 These problems
are not restricted to tribunals administered by central Government departments.
They are also a feature of many tribunals run by local government. School
Admission Appeal Panels are arranged by the very admission authorities
(either Local Education Authorities (LEAs) in the case of all community
and voluntary controlled schools in their area, or school governing
bodies in the case of foundation and voluntary aided schools) whose
decisions parents are appealing against. They are often held in local
education authority or school premises, clerical support being provided
by LEA or school staff. The tribunal panel may include serving or retired
teaching staff. Within the limits of its composition and procedure the
panel we saw was clearly acting fairly and impartially. Despite recent
attempts by the Department for Education and Employment to secure greater
independence, our research study revealed how the arrangements can still
lead to a perception that tribunals are not independent. One applicant
to an Admission Appeal Panel commented: "They [the school and the
Admission Panel] were together and not separately. Like it wasn’t
like having a judge and two sides. It was like having two sides and
you...I felt it was more biased to the schools than the parent."
Whilst it could be argued that the civil right of an education is not
being denied and therefore the same requirements for a fair hearing
do not apply to Admission appeals as for other appeals, it seems to
us (see also paragraph
2.17) to be against the laws of natural justice not to allow all
appellants the same degree of fairness in whatever tribunal or adjudicative
forum they take their case. Exclusion decisions are, however, at greater
risk of causing a denial of the civil right to education. Local government
tribunals are examined in more detail in paragraphs
3.12 — 3.16.
There are, however, particular issues relating to the independence of
tribunals from local government, which may stand to gain or lose revenue
as a direct or indirect result of tribunal decisions. There was, for
example, sustained criticism of the lack of independence of the housing
benefit review boards (whose jurisdiction will transfer to the Appeals
Service in July 2001) on the grounds that their decisions appeared to
be influenced by their likely impact on local authority expenditure.
It is notable that, at central Government level, all the tax tribunals
are now administered not by Treasury ministers but by the Lord Chancellor.
Ministerial responsibility
2.23 We have
concluded that the only way in which users can be satisfied that tribunals
are truly independent is by developing clear separation between the
ministers and other authorities whose policies and decisions are tested
by tribunals, and the minister who appoints and supports them. [1]
There are two possible approaches. First, the maintenance of an effective
system of appeal from decision-makers, primarily in administrative matters,
might be regarded as a matter of good administration and become one
of the central functions of Government. Responsibility for tribunal
administration might then be allocated to the Cabinet Office minister
acting for the Minister for the Civil Service, who is the Prime Minister.
This would be one way of giving the Tribunals System the importance
which it should have as the main regulator of relationships between
public authorities and the citizen. Tribunals often feel that they have
a low place in departments’ priorities, so a central place in the
machinery of government would go far to improve their profile.
2.24 That is also
the main objection to this approach. Given the close constitutional
links with the Prime Minister, many might feel that tribunals would
be more, rather than less, implicated in the delivery of Government
policies. There would be little logic in a tribunal system for which
the Cabinet Office was responsible dealing with disputes between individual
parties, and we consider that users will benefit from a single system
for all tribunal disputes. It would also add a major administrative
task to a department that has no comparable functions.
2.25 The important
place which tribunals now play in the modern system of administrative
law would best be recognised by forming them into a coherent system
to sit alongside the ordinary courts, with administrative support provided
by the LCD. The Lord Chancellor’s policy responsibilities do not
give rise to tribunal cases. He is already responsible for the appointment
of most tribunal members, and has extensive experience of managing courts.
He is also responsible for the administration of the Judicial Studies
Board, through which the judiciary supervises the provision of training
to judges. As a minister he is responsible to Parliament, and so to
the public, for the proper functioning of our system of justice. He
is uniquely well placed and well qualified to protect the independence
of the chairmen and members of tribunals as well as of the judiciary.
2.26 Such a change
would effectively complete the process begun thirty years ago by the
Courts Act 1971 of making a single minister responsible for the administration
of justice in England and Wales. A coherent body of functions will improve
accountability to Parliament and the public, and to users for providing
an effective, swift, and proportionate set of processes for resolving
disputes. That makes a significant contribution to the joining-up of
government.
Procedural reform
2.27 Centralising
responsibility for the administration of tribunals under the Lord Chancellor
would have another advantage. The procedural reform of formal dispute
resolution processes, in courts and tribunals, involves a distinctive
and common set of issues. Our consultation, and what we have seen, have
convinced us that leaving procedural reform of tribunals scattered across
a series of departments is impeding modernisation. The process begun
by the civil justice reforms in the courts should be completed by the
department now equipped to transpose those reforms into a tribunal context.
The Parliamentary Commissioner
for Administration
2.28 It is central
to the maintenance of independence that the actions of tribunal members
should be subject to review only by a superior tribunal, or the courts.
They should therefore not fall within the jurisdiction of the Parliamentary
Commissioner for Administration (PCA), or the Local Government Commissioners.
Transfer of administrative responsibilities to the LCD will, however,
enable proper scrutiny of the administrative actions of tribunal staff
by the PCA. Amendments made by the Courts and Legal Services Act 1990
to the Parliamentary Commissioner Act 1967 enable purely administrative
functions to be investigated by the PCA, but not actions by the administrative
staff of any tribunal taken at the direction, or on the authority (whether
expressed or implied), of any person acting as a member of the tribunal.
[2]
Modernising services
2.29 The Lord Chancellor’s
Department already has, through its responsibilities for the ordinary
court systems, extensive experience of providing accommodation for hearings,
IT for users and case management, and other support systems in the administration
of justice. Although there are differences between the training and
support needs of tribunals and courts, apart from a more demonstrably
independent service, centralising tribunal administration under a single
minister would make it much more likely that there would be a joined-up
and modernised service, which is (in the words of Modernising Government)
" from the public’s point of view, seamless [- and] makes
certain that citizens and business will have a choice about how and
when to access government services."11
We deal further with the benefits of coherence in Chapter
Three.
2.30 It would also
be difficult for some of the service and functions we recommend for
the new Tribunals Service to be carried out by staff employed by a policy
minister. In Chapter Four
we make recommendations for much more active support for users in preparing
and presenting their cases. Whilst tribunal staff will only be able
to give advice on tribunal procedures (not substantive or legal advice
on the merits of a case or how it should be handled), users are much
more likely to trust this advice coming from someone who is demonstrably
independent of the respondent department. In Chapter
Eight we recommend a much more active approach to case management.
Whilst administrative staff will be carrying out such tasks under the
direct supervision of a tribunal chairman and registrars, users are
likely to have much more confidence in their impartiality if they are
working for a department concerned solely with the administration of
justice.
2.31 In the interests
of securing independence of tribunals by ensuring that they are administered
by the department responsible for the administration of justice, and
in the interests of achieving a better service through economy of scale,
we recommend that the administration of tribunals should become the
responsibility of the Lord Chancellor. [3]
Appointments
2.32 Giving users
real confidence that appeals are decided by people genuinely independent
of departments, in the same way that the judges are, relies on more
than independent arrangements for administrative support. There has
been welcome progress towards greater consistency in appointments and
tenure provisions. But in order to emphasise the independence of these
important posts we recommend that it should go further. The same system
should be responsible for making both judicial and tribunal appointments,
and — in all relevant respects — they should be made in the
same way. In current terms, that means the Lord Chancellor should assume
responsibility for all appointments to tribunals which would otherwise
be made by Westminster ministers (in consultation, as necessary, with
other members of the UK Government or members of the devolved administrations).
[4] This would add appreciably to his department’s responsibilities.
We recognise that the very size of the task would require careful management.
The arrangements should be designed to meet the differing needs of tribunals,
and should match the best practices that they replace.
2.33 There are also
arguments of both consistency and accountability to Parliament that
the Lord Chancellor, in consultation with Scottish ministers, should
become responsible for the appointments currently made in Scotland by
the Lord President of the Court of Session. The making of appointments
is an area where devolution has already had an impact. The current arrangements
are complicated and any revision will need careful consideration. Chapter
Eleven of this report touches on devolution matters.
3 Cmnd 218; para 40
4 Ibid
5 Cmnd 218; para 60
6 Airey v Ireland (1979), 2 EHRR 305
7 R v Secretary of State for the Environment, Transport
and the Regions, ex parte Premier Leisure UK Ltd, Alconbury Developments
Ltd, and Legal and General Assurance Society Ltd; The Times; 24 January
2001
8 Bryan v UK (1996) 21 EHRR 342
9 Weeks v. UK (1987) 10 EHRR 293
10 McGonnell v UK; 22 February 2000
11 Modernising Government; March 1999; Cm 4310; p.10
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