Chapter
Three - A more coherent system
3.1 This chapter concludes that
the current, dispersed arrangements for the administration of tribunals
would effectively preclude the reforms which we recommend to the services
provided to users. It therefore makes recommendations for a single Tribunals
System. The System should include tribunals administered by local authorities,
as well as tribunals which deal with disputes between individual parties.
3.2 Most tribunals are entirely self-contained,
and operate separately from each other, using different practices and
standards. It is obvious that the term "tribunal system" is
a misnomer. Since each tribunal has evolved as a solution to a particular
problem, adapted to one particular area, this lack of coherence might
not matter if it could be said that decisions were of good quality,
and consistent; that enough information, advice and support was available
to use tribunals adequately; that the services provided were delivering
what they were supposed to; and that the significant amount of money
tribunals were costing was well spent.
3.3 What we have learned about tribunals
has convinced us that no such assurance could properly be given. We
think radical changes are necessary, and justified.
The current position
3.4 A clear majority of those who
responded to the Consultation Paper felt that the current systems of
administrative support were not meeting the needs of tribunals and users.
In some they do not provide the support and help which users need to
prepare and present cases themselves. It appears to be not only users
themselves who are confused by the differing requirements of the current
collection of tribunals. We were told on many of our visits that solicitors
and other advisers regularly failed to appreciate the peculiarities
of individual tribunals’ practice, and that it tended to be only
a few specialist firms in each jurisdiction which gave a truly effective
service.
3.5 We recommend a programme of improvements
to information, tribunal procedure, case management, member recruitment
and training and IT, each element of which we consider necessary if
tribunals are to meet the needs of the modern user, and, amongst other
things, achieve the necessary equality of arms. That programme could
not be taken forward, in the absence of much greater co-ordination of
tribunals and their administration, without wholly disproportionate
expenditure of resources by the tribunals and their administration,
and wasteful duplication of effort by departments, since each would
need to develop the necessary skills.
3.6 For example, the Government has
committed itself to making all its services available electronically
by the year 2005. Many tribunals have only very basic, or no, IT support.
Providing the information and access systems we consider necessary will
be a major enterprise within that timescale. The chances of meeting
the target, and improving services to the user, would be greatly increased,
and the cost diminished, by a unified effort. Similarly, in our discussions
with representatives of the Judicial Studies Board, it was emphasised
that it was close to impossible to develop a coherent approach to training
in the inter-personal skills needed to conduct tribunal hearings effectively
within the current unsystematic arrangements.
3.7 Those improvements, and the other
elements in our programme of reform, require a greater degree of coherence
than now, and an organisation which promotes the effective operation
of each individual element of the Tribunals System as well as the System
as a whole. That will require wholly new kinds of effort, even with
the twelve tribunals already administered by the Lord Chancellor’s
Department. They may have a greater degree of independence than other
tribunals, but they are still very far from showing true coherence in
their approach to cases, or — despite real recent improvements
— in management systems and approach.
A single system
3.8 The overriding
aim should be to present the citizen with a single, overarching structure.
[5] It would give access to all tribunals. Any citizen who wished
to appeal to a tribunal would only have to submit the appeal, confident
in the knowledge that one system handled all such disputes, and could
be relied upon to allocate it to the right tribunal. This would be a
considerable advance in clarity and simplicity for users and their advisers.
The single system would enable a coherent, user-focussed approach to
the provision of information which would enable tribunals to meet the
claim that they operate in ways which enable citizens to participate
directly in preparing and presenting their own cases.
3.9 It would also help by creating
a clearer and simpler system for the development of the law. As things
now stand, tribunals are not able to set precedents, although some of
those which hear appeals from first-tier tribunals are making arrangements
for designating those cases which appear to be particularly authoritative
or significant. The arrangements for appealing from tribunals have developed
piece-meal, and show little logic. The relationship with the supervisory
and appellate jurisdictions of the ordinary courts (described in greater
detail in Chapter Six) is
often confusing. We consider this a significant failing. Tribunals have
developed a characteristic approach to managing hearings, and taking
decisions. We think they should be charged with developing the law in
a consistent way.
Disputes between the
citizen and the state
3.10 Most tribunals are concerned
with the resolution of disputes between the citizen (whether an individual
or a corporation) and the state. Some are concerned with appeals against
decisions within a statutory scheme: the oldest and the largest systems
respectively deal with liability to deliver taxation, and entitlement
to welfare benefits. Others consider such matters as the rights to immigration
or asylum status, or detention under the Mental Health Act. Many other
tribunals involve appeals against decisions of central or local regulatory
bodies (often themselves independent of Government but an essential
part in the delivery of overall Government policies). These disputes
should form the heart of the Tribunals System. They include the areas
where users stand to gain most from the more focussed approach to the
provision of information, the training of members, and the development
of consistent procedural approaches which we recommend. The detailed
design of the System will, however, need to take account of the diverse
origins of these bodies, the expert knowledge which lawyers and other
members will have to have of often formidably complicated areas of the
law, and wide varieties in the weight and complexity of cases. In Chapter
Six, we propose a flexible and broad grouping of the current tribunals
by subject-matter, which we consider will foster the growth of greater
consistency throughout the System, and preserve the necessary expertise
and flexibility which have been perhaps the major strengths of the current
collection of tribunals.
Investigatory Powers
Tribunal
3.13 Concerns over these tribunals
are all but identical to those expressed over central government tribunals.
In particular, all four rely, directly or indirectly, on local authorities
for administration and funding, despite the fact that local authorities
have an interest in the outcome of individual cases. As these tribunals
deal with local government, rather than central government issues, it
would be possible to treat them as distinct from other citizen and state
tribunals, and either maintain their existing arrangements or group
them together, but in a body separate from the Tribunals System, which
is also administered by the Tribunals Service.
3.14 Neither solution is satisfactory.
The existing arrangements may be vulnerable to ECHR challenge and in
any event there should not be a double standard. On the other hand,
a body separate from the Tribunals System would not provide the same
efficiencies or coherence as would result from including these tribunals
in the Tribunals System. Other than by their local government funding,
these tribunals are not distinct from central government tribunals.
Their processes, responsibilities, and accommodation and resource requirements
are similar to several citizen and central government tribunals.
3.15 Local government
tribunals should therefore be included in the Tribunals System. [7]
This would have several particular, practical advantages: accommodation
alongside other tribunals, a more professional administration, access
to IT systems, clear independence, increased accountability, opportunity
to share expertise with related tribunals, such as the Special Educational
Needs Tribunal (SENT), and access to training for members. We recognise
that these tribunals together hear even more cases than the Appeals
Service. Their amalgamation into the Tribunals Service, particularly
that of the School Admission and Exclusion Appeal Panels, will present
large and complex problems. We are, however, convinced that users would
benefit significantly if they were included.
3.16 On the face
of it, this recommendation might appear to be reducing the independence
of local authorities (and in the case of foundation and voluntary aided
schools, school governing bodies). In reality it is simply ending a
situation in which the local authority is judge in its own cause. It
should be noted, however, that the jurisdiction of the SENT has been
moved from local to central government without detriment, and reviews
of Housing Benefit, which are currently a local responsibility, are
shortly to be replaced with a right of appeal to an appeal tribunal,
administered by the Appeals Service. The Tribunals Service will have
a network of hearing centres across the country. It should aim to provide
a responsive local service from that network. Local authorities should
be consulted about the issues involved in any transfer. [8]
PARTY AND PARTY TRIBUNALS
3.17 There are already significant
differences in the approach to the management of cases for hearing,
and of the hearing itself, between tribunals which resolve disputes
between the citizen and the state, and those which resolve disputes
between parties. The latter have to be more adversarial in approach
than the former, and in Chapter Eight we recommend for them a modification
and simplification of the approach now incorporated in the new Civil
Procedure Rules. For citizen and state tribunals, a different approach
is appropriate, based on the Model Rules published by the Council on
Tribunals14.
The differences are likely to be most marked in the management of cases
as they are prepared for hearing, with greater involvement by tribunal
staff and the new registrars which we recommend in party and party cases.
Those differences will make it impossible for tribunal members to handle
both kinds of case within the same Division. They will also require
separate administrative procedures. [9]
3.18 There are arguments for going
further, and for keeping party and party cases separate from those dealing
with administrative law. They are the parts of the tribunal system closest
in essential function to the ordinary courts. The need for a fundamentally
adversarial approach to cases has produced similarities in procedure.
There is therefore an argument for party and party tribunals either
to be merged with the ordinary courts, or to remain a separate body
of tribunals but in a closer relationship with the courts, and administered
by the Court Service. The cases we have observed in these tribunals,
and our consultation evidence, suggest that party and party tribunals
are falling behind the modern courts in terms of speed, active case
management, the effective conduct of hearings, and even informality.
A closer relationship might promote modernisation and further the development
of the new civil procedures side by side in courts and in party and
party tribunals.
3.19 Against these
arguments should be set the distinctive benefits for the user in having
cases decided by tribunals: the opportunities if procedures and hearings
are simple and informal enough for users reasonably to expect to handle
cases themselves, if properly supported; and better decisions if they
are taken jointly by lawyers and experts. As we argue in Chapters Four,
Eight and Eleven, we think that the first of these aims can only be
secured by improvements in current practice that will deliver increasingly
distinctive tribunal forms of hearing, listing, information for users,
procedural help from staff, and substantive advice from independent
agencies, as well as particularly simple procedures. This has led us
to conclude that the features which are common to citizen and state
tribunals and party and party tribunals are much more important than
those which divide them. Both should therefore form part of the Tribunals
System. [10]
Separate administration
3.20 We were
at one stage attracted to the idea that the Division within the system
which deals with party and party cases should have a separate supporting
organisation. That would enable administrative staff to develop greater
expertise in the distinctive techniques of case management. The establishment
of a separate agency alongside the Tribunals Service, however, would
be an expensive option and would result in a loss of coherence. They
would both require separate frameworks, Chief Executives, and policy
and personnel overheads. There would be overlaps in resources. We do
not think the marginal improvements in service which might be realised
by separate systems would be sufficient to justify them. We therefore
recommend that the administration of citizen and state and party and
party tribunals should be combined within the Tribunals Service.
[11] The degree of organisational separation each would require
should be worked out during the establishment of the new service.
Employment Tribunals
3.21 We received more comments on
the Employment Tribunals (ETs), and how they might develop, than on
any other body, and we have carefully considered two arguments which
might suggest they should not form part of the Tribunals System, or
be administered by the Tribunals Service.
Courts
3.22 First, some
have argued that, because ETs in some ways — and perhaps increasingly
— resemble courts, they should become courts, possibly as a separate
system of industrial courts. We think that would be a retrograde step.
One of the defining characteristics of the ET is that it has wing members
who bring experience of both sides of industry. Users argue strongly
that having members with that experience participating directly in the
decision-making process leads to better decisions, and that a panel
including both lawyers and non-lawyers is more accessible. We agree,
and recommend that three-member panels should remain the norm for ET
cases. [12] Suggestions we make for increasing case management
in ETs may well, however, also lead to increased use of single-member
panels to deal with interlocutory issues, which will probably be most
appropriate for determination by a lawyer.
3.23 Tribunals’
other great strength is that their procedures should be simple enough,
and hearings informal enough, for users to represent themselves. Although
we were told that the increasing complexity of the law was making this
progressively more difficult in some areas of ET work (predominantly
discrimination cases), a majority of ET users continue to be unrepresented.
Key elements in enabling that proportion to grow, and enabling more
users to look out for themselves, are the provision of all the information
which they require to prepare their own cases, and the training of chairmen
and members in the skills needed to facilitate their presentation. We
recommend in Chapters Four and Seven a package of measures to improve
services in both respects. ETs should have a high priority in the implementation
of that programme. [13]
3.24 It would
be difficult to preserve the multi-member panel, and effectively impossible
to adopt the enabling approach we recommend for tribunals, within the
court system. Indeed, making ETs into courts would be likely to mean
more lawyers and so more complexity; and in a self-perpetuating spiral,
more complexity means more lawyers. We recommend they should remain
tribunals. [14]
Administrative
responsibility
3.25 Secondly,
the Department of Trade and Industry (DTI) and some user representatives
have argued that the administrative control of the ETs (and of the Employment
Appeal Tribunal (EAT)) should remain with the DTI as the policy department,
because it is best placed to decide what new legislation is needed in
the light of its contact with both sides of industry. Most of those
who responded, however, favoured the transfer of administrative responsibility
from policy departments to the LCD (or to a Minister of Justice). That
users are concerned about the current relationships is evidenced by
a number of challenges which have already been mounted under the ECHR.
There are considerable obstacles to convincing users that the ETs can
clearly demonstrate the same quality of independence as the courts.
First, the DTI is responsible for the policy and legislation under which
cases are brought. This itself may lead some users to think that the
tribunal is part of the same enterprise as the department. The DTI also
pays the salaries and allowances of ET members, and appoints the non-lawyer
members. That nexus of relationships is further complicated by the fact
that the DTI itself is a party before the ET in around 1000 cases each
year. We were told that recently a respondent to such a case had refused
to appear on the ground that he wished to appeal against the decision
of the "DTI Tribunal". It is not surprising that in Smith
v. Secretary of State for Trade and Industry15,
the then President of the EAT expressed concern about this lack of independence
when dealing with a challenge under the ECHR. Current administrative
arrangements are likely to increase vulnerability to such challenges.
In any event from the user’s point of view it is objectionable
in its own right. We recommend that administrative control should be
transferred to the LCD. [15]
Improving policy
and procedure
3.26 That should clarify responsibilities
for improving the lot of ET users. Their principal complaint is that
the increasing complexity of the law makes it more difficult for them
to appear before the tribunal without legal representation. In Chapter
Nine we make recommendations to assist the process of tribunals
identifying possible systemic problems with the legislation, and to
ensure that they are communicated to the responsible officials; and
in Chapter Seven we note
a role for the Council on Tribunals in scrutinising legislation. They
should be more effective than current arrangements have proved.
3.27 The LCD,
as the department responsible for modernising the administration of
justice, should tackle in parallel the procedural problems which users
face in the ET. [16] The President of the ET told us that he
had been trying for years to secure changes to the tribunal’s rules
of procedure in order to bring them into line with the reforms of civil
justice, but without avail. By contrast with the LCD, which has behind
it the experience of implementing the civil justice reforms, it is unrealistic
to expect the DTI to possess the skills or the resources required to
carry into effect the changes which the ET requires. The LCD should
aim to adapt the civil justice reforms for the different circumstances
of litigation before tribunals as quickly as possible, to ensure that
procedures are as speedy, proportionate and cheap as the nature of each
case allows. There is a particular need in ETs for issues to be identified
and weak cases to be eradicated at an early stage through effective
case management. [17] We deal further with ET requirements in
this respect, and the needs of unrepresented users to be given particular
support, in Chapter Eight.
3.28 The EAT is
already in a somewhat anomalous position. It is the only one of the
tribunals established to hear appeals from a first-tier tribunal not
already administered by the LCD. It too should be part of the Tribunals
System and of the Tribunals Service. [18]
Jurisdiction and
costs
3.29 During our visit, and in response
to consultation, we received a number of specific suggestions about
extending the jurisdiction of the ETs, changes to their cost regime
and the regulation of professional services. Our recommendations on
the first two of these matters are to be found in our note on ETs in
Part II, and on the third in paragraphs 4.33
— 4.39 of Chapter
Four.
Land, property and housing
3.30 There are
confusing overlaps of jurisdiction between courts and tribunals, as
well as between tribunals. The tribunal model is a useful one, because
it brings experts within the decision-making process. For example, users
we spoke to valued the active participation of surveyor and valuer members
in the conduct of cases before the Valuation and Leasehold Valuation
Tribunals, and felt that decisions were better informed as a result.
But the nature and conduct of these disputes are even closer to those
handled by courts than those before ETs, and indeed in some jurisdictions
can be heard in whole or in part by both courts and tribunals. We cannot
simply suggest they should constitute a specialised section of the county
court, sitting with valuers or surveyors, because courts and tribunals
have different remedies, and the underlying law would need close examination.
Any such consideration goes well beyond our terms of reference. It will
also require specialist expertise. We understand that the Law Commission
is shortly to begin a major programme of proposals for reform of the
substantive law of housing and tenancies. An expert decision-making
forum, without overlapping jurisdictions, is a precondition of effective
procedural reform. The Law Commission should be enlisted with the Lands
Tribunal itself to assist the Government in working out a comprehensive
solution, with a view to removing the overlaps and scope for forum-shopping
to be found in the current arrangements. [19]
Intellectual property
3.31 The Copyright
Tribunal decides, where the parties cannot agree between themselves,
the terms and conditions of licences offered by, or licensing schemes
operated by, collective licensing bodies in the copyright and related
rights area. The licensing body is usually a party to the dispute. There
is therefore a complex mixture of disputes between individuals, and
regulatory disputes. There might be some theoretical case for transfer
to the High Court, but the few consultation responses we received about
this tribunal argued for more expert participation by non-lawyer members
with specialised knowledge of the industry, rather than less. There
are significant similarities in the tribunal’s work to that of
the tribunals in the Regulatory Division which will form part of the
Tribunals System. We therefore recommend that the Copyright Tribunal
should also form part of the Tribunals System and be supported by the
Tribunals Service, and that it can conveniently be allocated to the
Regulatory Division. [20]
3.32 The position
of Patent Office tribunals is more complicated. These tribunals hear
appeals against decisions of examiners — appeals which are essentially
between citizen and state, as well as disputes between parties. In each
of these cases, however, the decision of a Hearing Officer is part of
an administrative, rather than adjudicative, process leading to grant
or registration. This administrative process is particularly specialised
and technical. We do not believe it could be carried out as efficiently,
or as cost effectively, by a body outside the Patent Office. We also
note that full rights of appeal exist to the court, or to the appointed
person, an independent body. We therefore recommend that Patent Office
tribunals should not form part of the Tribunals System but remain as
part of the Patent Office. [21]
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