Chapter Six - The Tribunals System
6.1 This chapter deals with the
structure of the Tribunals System. It makes recommendations for an arrangement
of Divisions which will group first-tier tribunals by subject matter,
and for appeals from those tribunals to be heard by tribunals in an
appellate Division, able to develop the law within a consistent and
distinctive tribunal approach. It makes recommendations on which decisions
should set binding precedents for the system, and on the operation of
the supervisory jurisdiction of the High Court. It proposes a structure
to give clear leadership for the members of the System and a collective
body to co-ordinate that leadership. It also recommends a common system
of pay and conditions for all tribunal members.
THE STRUCTURE OF THE SYSTEM
6.2 If it is to be capable of handling
its workload effectively, and ensuring the consistent development of
the law, the Tribunals System must have a coherent structure to enable
the effective management of workload, encourage consistency, and further
a common approach in decision-making and case handling and management.
The structure must, however, preserve the expertise of members and support
staff within the current individual tribunals. Appeal routes have also
developed haphazardly. The Tribunals System should have a simple, clear
structure for handling appeals, which should be capable of developing
the law consistently, be as self-contained as is permissible, and, subject
to statutory exceptions, apply to all areas.
Divisions
6.3 An undivided
body would be impracticably large and diverse. It would make it difficult
or impossible to preserve the expertise of both members and staff of
the existing tribunals, and to improve on both by training across so
wide a field. We have therefore sought to divide the new Tribunals System
by subject-matter into sensibly coherent areas of work. Tribunals within
the System should be grouped by subject-matter into Divisions in a structure
which is at once apparent to the user. [89] We suggest that an
approach which seeks to bring together into one Division as far as possible
the tribunals for which one Government department currently has overall
responsibility (including those which are administered by local government)
has some pragmatic sense. It also creates Divisions with a reasonably
narrow spread of subject-matter. [90]
Constituting the Divisions
6.4 The divisional
structure will play an essential part in managing the System’s
workload, improving the quality of its decisions, and focussing its
services to the user. The structure should be sufficiently flexible
to cope with: the progressive addition of jurisdictions as the new System
is brought together; the transfer of jurisdictions between Divisions
as workload or procedural requirements change; and the allocation to
the most appropriate Divisions of new tribunals, as further rights of
appeal are created by new legislation. The mechanisms for allocating
work to Divisions should themselves be sufficiently flexible to allow
rapid changes. [91] Our preference would be for the Lord Chancellor
to allocate tribunals by Practice Direction, with the concurrence of
the Senior President. [92] If legislative provision is thought
to be necessary, it should be by negative resolution Statutory Instrument.
First-tier tribunals
6.5 Using the
aims set out in paragraph 6.3,
the current tribunals can be grouped into nine Divisions dealing with
Immigration, Social Security and Pensions, Land and Valuation, Financial,
Transport, Health and Social Services, Education and Regulatory (all
of which deal with disputes between the citizen and the state); and
Employment (which are disputes between parties). [93] Each Division
should initially be regarded not as a single tribunal, but as a grouping
of the currently existing tribunals. Over time, we would expect to see
a large degree of commonality in each Division’s procedures and
case management, but that should develop progressively. Procedures must
be sufficiently flexible to take account of variations in the weight
and complexity of cases, even within a single Division. The proposed
grouping is set out in Table
C, following paragraph 6.43.
6.6 After training,
tribunal chairmen or members appointed to a Division should be broadly
familiar with the law throughout the Division, and of how cases within
it are to be managed and heard. Some areas, of course, will still remain
diverse, and the weight and complexity of cases will vary considerably.
As with current tribunals, the workload of some will vary significantly.
Part-time appointments, or appointment to a panel of members, will continue
to be necessary if the right degree of expertise is to be maintained.
So the allocation of members to the appropriate cases will be an important
responsibility of Presidents and senior chairmen. Although members will
be appointed to a particular tribunal within the Division (as discussed
in Chapter Seven), the arrangements
for sitting in other tribunals within a Division, or working in other
Divisions, after any necessary training, should be flexible. [94]
Appeals: current position
6.7 There are five tribunals ("second-tier
tribunals") whose function it is to entertain appeals from other
tribunals ("first-tier tribunals")in citizen and state disputes
in the areas of immigration, social security, land, transport and —
up to a point — tax20.
Each is administered by the LCD. In addition, the Employment Appeal
Tribunal (EAT) deals with appeals from a party and party tribunal, in
the area of employment, and is administered by the Department of Trade
and Industry (DTI). In other jurisdictions, there may be an appeal to
a court, or no recourse other than judicial review.
6.8 The current structure of appeal
routes is haphazard, having developed alongside the unstructured growth
of the tribunals themselves. Some tribunals provide for a two-tier structure;
some do not. Relationships with the higher courts vary, quite apart
from the need to take account of the Scottish and Northern Irish legal
systems. For example, appeals on points of law from the EAT and the
Immigration Appeal Tribunal (IAT) go to the Court of Appeal (Civil Division);
appeals from the Valuation Tribunals go to the High Court on council
tax matters, or to the Lands Tribunal on rating matters. There is a
variety of time limits for appealing which were set down in the individual
governing statutes. In response to our Consultation Paper there were
suggestions21
that particularly complex cases should "leapfrog"; for example,
that some types of complex valuation cases should go directly to the
Lands Tribunal or that some tax cases should go directly to the High
Court or Court of Appeal. Some22
suggested that the VAT and Duties Tribunal might usefully exercise a
first instance judicial review function. Jurisdictions cited as having
inadequate rights of onward appeal were immigration, valuation, tax,
mental health and social security. Important areas such as the work
of Mental Health Review Tribunals (MHRTs) and the other health appeal
tribunals, and education, are effectively left with no recourse apart
from judicial review. If only for reasons of the greater complexity
of the procedure, that cannot be regarded as a real alternative to an
effective right of appeal, normally within the tribunal system.
Appellate tribunals: our
proposals
6.9 The appeal routes were described
by the then Lord Justice Woolf as "a hotch-potch"23.
They are not satisfactory. We think the answer is to simplify, to ensure
that the onward appeal routes are rational and clearly defined.
6.10 There should
be a single route for all appeals from tribunals, subject only to the
exceptions with which we deal in paragraphs
6.14 and 6.15 below. [95]
The appeal body needs to be able to give genuine coherence to the
development of the law, and promote consistency effectively both at
its own level and in the first-tier tribunals. This points towards a
single appellate Division24.
The arrangements must, however, also preserve the considerable expertise
which has developed in the current appellate tribunals. There will also
be wide variations in the numbers of appeals produced by different first-tier
Divisions. This again points to groupings on the basis of subject-matter.
It is clear that on current workload, there will be sufficient appeals
coming from the Immigration, Social Security and Pensions, Land and
Valuation, Financial and Employment first-tier Divisions for each to
require a separate appellate body led by its own senior member. There
is now no appellate tribunal corresponding to the Health and Social
Services, Education or Regulatory first-tier Divisions. From what limited
information is available about appeals to the courts or judicial reviews
from the current first-tier tribunals, it does not seem likely that
those areas will give rise to sufficient appeals to require a standing
body of members. The Transport Tribunal, the obvious nucleus of an appellate
jurisdiction dealing with transport, hears fewer than 100 cases a year.
Members should be appointed within the Transport, Health and Social
Services, Education and Regulatory appellate Tribunals on the basis
that they will be asked to serve as necessary. Cases should be allocated
by the head of the appellate Division. [96] Even more than with
the first-tier tribunals, part-time or panel appointments will be necessary,
to ensure that members have the necessary high level of expertise. Ad
hoc appointments should also be possible to deal with cases where particularly
specialist skills are required. As with first-tier Divisions, the heads
of the five tribunals within the appellate Division which will obviously
require a separate existence should be called Presidents. The head of
the appellate Division, and of the Tribunals System overall, should
be the Senior President. The Division structure is set out in Table
C, following paragraph 6.43.
6.11 The work
of the second-tier appellate Division should not be limited exclusively
to hearing appeals from first-tier tribunals, but should also have a
first-tier jurisdiction for particularly complex cases. For example,
the Lands Tribunal already has a mixture of first instance and appellate
work. We think the balance between them is broadly right. Similarly,
the Special Commissioners of Income Tax deal with the more complicated
appeals involving direct taxation. We refer in a separate note to the
reform of the tax appeal system with the further changes which we think
are necessary to turn the existing complex series of jurisdictions into
an effective, modern appeal system. They would include the successor
body of the Special Commissioners, the appellate financial tribunal,
hearing at first instance the more complex and weighty cases in relation
to both direct and indirect taxation, as well as hearing appeals from
the first-tier Financial Division tribunals, other than the Financial
Services and Markets Tribunal. Where second-tier jurisdictions have
a mix of first instance and appellate work, it will be necessary to
provide for expert, non-lawyer members to sit on first-instance cases
where that is required by the needs of the case. [97]
Ground for appeals :
the general rule
6.12 The general
position should be that any current rights of appeal, whether created
by the legislation establishing individual tribunals or by the Tribunals
and Inquiries Act 1992, should be replaced by a right of appeal on a
point of law, by permission, on the generic ground that the decision
of the tribunal was unlawful:
6.22 The first option, that decisions
should not be binding, we have rejected as it would significantly weaken
the prospects for clear and consistent decision-making across the System.
6.23 The second option, that the
second-tier tribunals should be constituted superior courts of record,
has two disadvantages. First, it has been argued that the informality
of tribunal procedure, and the importance to their jurisdictions of
full and frank disclosure of all relevant facts, might make contempt
powers inappropriate. Secondly, giving the appellate tribunals status
as superior courts would undoubtedly blur the clear distinction we seek
to draw between the new system and the courts. This problem does not
arise, at least in the same form, with the EAT, given its status as
in essence a court hearing disputes between parties, albeit a peculiarly
constituted and specialist one.
6.24 Statutory provision for all
cases to be binding, the third option, is legally and administratively
the simplest one, and the one which would create the closest analogies
between the new Tribunals System and the way in which the appellate
courts work. It has a major disadvantage. It would require users to
be aware of all relevant decisions, to know what law would apply to
their case. This could be a significant barrier to access. There have
certainly been many claims that proliferating EAT precedents have been
a major factor behind the growth of legal representation in the Employment
Tribunals (ETs).
6.25 There are two methods of achieving
the fourth option, that some, but not all, decisions be binding. The
first would be to select, before listing for a hearing, cases identified
as raising particularly important or general questions of principle,
and arrange for them to be taken by a specially constituted panel, as
happens on occasion with the Social Security Commissioners. (Appellate
courts increase the authority of their judgments by hearing exceptionally
important cases in larger panels.) The advantage of this is that it
reduces the risk of arbitrary or improper selection of decisions which
might take precedent in the direction favoured by a selecting authority.
The disadvantage is that it would be difficult, perhaps impossible,
to sift out effectively the best precedent-setting cases, except in
the case of interpretations of very new legislation. Also, it would
be resource-intensive both in selection of cases and in hearings, and
could be used only rarely.
6.26 We therefore
recommend that the system of designating some cases as binding (or limiting
the cases which can be cited in argument), as used by the Social Security
Commissioners and the IAT, should be adopted throughout the appellate
Division. [104] The advantages of this are that the selectors
will have before them all appealed decisions as the pool from which
to select the most analytically powerful precedents. Some control over
the number of precedents is also possible, to give users greater certainty.
There is a theoretical disadvantage in that it allows the selectors
a power that is potentially open to abuse. This could be removed by
making the final adoption of precedents a collective decision. We recommend
that final decisions about binding precedents should be taken by the
President of the appellate tribunal concerned, subject to the approval
of the Tribunals Board. [105] This offers a degree of flexibility
that will be necessary for a system of the size of the Tribunals System.
It also provides a degree of certainty for users that the other options
lack.
The place of judicial
review
Bowman
6.27 One of the factors which led
to the establishment of the Review of Tribunals was a recommendation
of Sir Jeffery Bowman’s review of the Crown Office27.
That found that the complicated and haphazard growth of tribunals and
appeal routes, and the procedures and powers within the appellate tribunals
system, had much increased both the volume and complexity of judicial
review. In particular, it was felt that experience in relation to immigration
and asylum indicated the possible existence of a systemic and general
problem. The proportion of immigration and (mostly) asylum cases in
applications for permission for judicial review in 1999 was approaching
two-thirds of the total. Some of these were in relation to Home Office
decisions where there was no right of appeal. Many involved decisions
of the IAA, with applications involving the refusal of leave to appeal
to the IAT forming the largest group. While the great majority of them
were unsuccessful, they demonstrate the waste of scarce resources which
can arise from problems in the relationship between tribunals and courts.
Appeal and judicial
review
6.28 There is a fundamental distinction
between an appeal to consider the merits of a decision and whether it
is correct in fact and law, and judicial review to determine whether
action is lawful or not and to award suitable relief. The distinction
has been important in the development over the last 50 years of a process
of judicial review in which the High Court, as a court of general jurisdiction
with wide common law powers, has set the bounds of legality for tribunals,
as inferior courts of limited jurisdiction.
6.29 The courts’ general approach,
however, has been that because judicial review exists to provide a remedy
for an action which is unlawful, the existence of an alternative remedy
through appeal should not be a barrier to review, unless there is express
statutory provision to that effect, and even then only to the extent
that the words of the statute clearly and explicitly exclude review.
There are, however, some cases setting out the principle that review
should not be exercised where other remedies are available and have
not been used. That is also the view of the Law Commission28.
It is one we share.
6.30 Our recommendations will —
subject to limited exceptions — create a comprehensive and systematic
right of appeal from first-tier tribunals to the appellate Division,
and from there to the Court of Appeal. Any point of law will in future
be open to challenge within the Tribunals System, before expert members,
operating the distinctive enabling approach common to all tribunals.
The senior members of the appellate Division will be judges, often judges
of the High Court. It would be significantly to users’ benefit
to use that appeal system, rather than have recourse to the more complicated
procedures and more limited remedies of judicial review. We think that
this latter possibility should be excluded. Slightly different arguments
apply to the appellate Division and first-tier tribunals.
The appellate
Division and judicial review
6.31 The EAT and the Transport Tribunal
have been designated superior courts of record. As such, they have a
status formally equivalent to that of the High Court and therefore escape
judicial review. The others do not. All have been subject to intermittent,
and the IAT to regular, challenge.
6.32 The aim for the new appellate
Division will be to develop, by its general expertise and the selective
identification of binding precedents, a coherent approach to the law.
In this, although operating with greater procedural flexibility and
informality than may be found in the High Court, as well as being considerably
cheaper to approach, it will be comparable in authority to the High
Court so far as tribunals are concerned. The Senior President who will
preside over the appellate Division will be a High Court judge, and
so may be a number of other Presidents. They can be expected to hear
the most difficult cases. It would be inappropriate to subject these
Presidents to review by another judge of equal status. There would also
be a problem in reducing the current status of the EAT and Transport
Tribunal. Although it would be possible to preserve their status as
superior courts of record, and leave the other appeal tribunals subject
to judicial review, that would give rise to a strong impression of differing
authority in decisions.
6.33 There appear to be two ways
in which judicial review can be avoided. The first is to constitute
all the appeal tribunals a superior court of record, as has already
been done with two of them. There are a number of possible disadvantages.
First, it would prevent the selective approach to the making of precedents
binding on inferior tribunals, since all decisions of superior courts
are binding on inferior courts or tribunals, which we have mentioned
above. It would give the appellate Division contempt powers that may
not be appropriate. Perhaps more fundamentally, it is an artificial
way of tackling the problem, which would blur the clear distinction
we wish to achieve between the courts and the Tribunals System.
6.34 The other
option is to exclude judicial review by express statutory provision.
There is a model for this. The Crown Court is a court inferior to the
High Court which can be required to submit decisions for a view of their
legality by way of case stated, and which is generally subject to judicial
review. Under Section 29(3) of the Supreme Court Act 1981, however,
the High Court is given its general jurisdiction for judicial review
"in relation to the jurisdiction of the Crown Court, other than
its jurisdiction in matters relating to trial on indictment".
The advantage of adopting a similar approach would be that it would
preserve a clear distinction between the new System and the courts.
We so recommend. [106]
First-tier tribunals
and judicial review
6.35 The argument for excluding judicial
review of decisions of the first-tier tribunals breaks newer ground.
The circumstances for it will be created by our recommendations for
a comprehensive appeal jurisdiction taking effect in all tribunals,
and working within a framework where precedent can be set, whereby the
law binding all tribunals can develop in a consistent way. It would
do this within a system with a distinctive and accessible approach to
hearing cases and reaching decisions, and one within which it will be
in the user’s interest to stay. We think it undesirable for parties
to a tribunal case in effect to have the choice between an appeal to
the appellate Division or judicial review. It might be possible to rely
on the Civil Procedure Rules to restrict or prevent such forum-shopping,
since the fact that applicants for permission to apply for judicial
review would not have exhausted their remedy by appealing to the appellate
Division would be likely to be a powerful factor against the grant of
permission. But such an approach has given rise to problems in the past.
In the new circumstances created by the creation of the Tribunals System,
with a separate system of administrative justice of comparable authority,
it would be preferable to maintain a clear distinction.
6.36 In the case
of most first-tier tribunals, the option of designating them superior
courts of record would be manifestly inappropriate. We therefore recommend
a statutory provision prohibiting review of their decisions where there
was a right of appeal which had not been exercised. [107]
Presidents
6.37 The Tribunals
System should be headed by the Senior President, who should be a High
Court judge sitting in one of the tribunals in the appellate Division.
[108] There should be Presidents for five appellate tribunals.
As now applies for the EAT, the President of the appellate Employment
Tribunal should be a High Court judge. It is also likely that the President
of the appellate Financial Tribunal should be a High Court judge, and
possible that the same will apply in the appellate Social Security and
Pensions Tribunal and the Immigration appellate Tribunal. [109]
It is unlikely that the workload of the other appellate tribunals would
justify a full-time post, and a part-time appointment would be appropriate.
The first-tier Divisions will also be headed by Presidents. Where possible,
they should be full-time appointments. They will normally be Circuit
judges, or senior lawyers of equivalent authority. [110]
6.38 It should be the task of the
Presidents to promote, by leadership and co-ordination, both consistency
of decision-making and uniformity of practice and procedure throughout
their respective areas of responsibility.
Regional and District
Chairmen
6.39 There should
be provision for the appointment of Regional (and where necessary District)
Chairmen in the largest first-tier tribunals, to assist the Presidents
in their duties. [111]
A Tribunals Board
6.40 The Tribunals
System should be directed by a council, which to avoid confusion may
be called the Tribunals Board. [112] It should consist of the
Senior President, the Presidents of appellate tribunals who are judges
of the High Court, and the Presidents of first-tier Divisions, together
with the Chairman of the Council on Tribunals, the Chairman of the Tribunals
Committee of the Judicial Studies Board, and the Chief Executive of
the Tribunals Service. [113] The Board’s functions should
include: advising the Lord Chancellor’s Department (LCD) on qualifications
for chairmen and members, overseeing the appointment and re-appointment
of members, co-ordinating their training, investigating complaints against
members, and recommending changes to the rules of procedure governing
all Divisions. [114]
Structure of the Tribunals
System
6.41 Table
C indicates how we envisage the allocation of subject matter to
Divisions.
6.42 We have attempted to estimate
the likely caseload for each of the Divisions. This has not been an
easy task. Different tribunals measure caseload in different ways. These
differences are symptomatic of a wider problem: despite the helpfulness
of staff in each of the tribunals with which we have dealt, and for
which we are very grateful, we have encountered considerable difficulties
in obtaining meaningful management information. Tribunals vary tremendously
in their approaches to collecting management information and measuring
performance. Some figures, taken at face value, would give a misleading
impression of the amount or nature of a tribunal’s work. For example,
the great majority of Valuation Tribunal cases are disposed of by consent,
or unopposed; and many General Commissioner of Income Tax cases are
purely formal. This has hindered our efforts to compare tribunals, and
is further evidence that the present system is hampered by its lack
of coherence.
6.43 Table
D gives an indication of how this new Tribunals System will look.
The table shows the structure of, and relationship between, first- and
second-tier tribunals, and links between tribunal members and those
responsible for providing administrative support.
PAY
AND CONDITIONS
Rates
of pay and conditions of service
6.44 Salaries
for the main full-time tribunal officeholders are determined by the
Senior Salaries Review Body (SSRB), as part of its work on the full-time
judicial salary structure and levels. The SSRB deals with posts in each
of the UK jurisdictions. This enables study of the comparative weights
of the posts, alongside other recruitment and retention factors. The
overwhelming majority of tribunal appointments are, however, part-time.
Whilst the SSRB undertook a special one-off review of part-time legal
members of the LCD-administered tribunals in 1999, there is little or
no further co-ordination. The SSRB study did not extend to non-lawyers.
Although the statutory provisions for many appointments require consultation
with the Treasury, over recent years there has been a drive for individual
ministers and departments to have greater delegated authority for the
pay and conditions of service for the appointments which they make.
Although the Franks Committee had envisaged a wide co-ordinating role
for the Council on Tribunals, including consideration of pay and conditions,
it has never played any general part in this area. The LCD keeps up-to-date
information even on basic rates of pay only for the appointments for
which it is directly responsible, although it can also receive information
where it is involved in the recruitment process. There is therefore
not even a consolidated list of rates for tribunal appointments across
Government which departments can consult when considering current rates
of pay for their appointments, or appropriate levels for new jurisdictions.
Table C - Grouping into
Divisions
6.45 We have some concerns about
the resulting situation. We note that members of a few tribunals (notably
the GCITs, in Valuation Tribunals, and in School Admission and Exclusion
Panels) are not paid regular fees, although they can claim expenses.
Many tribunals provided for by legislation have not yet been convened
and so have no apparent pay structure.
6.46 First, some tribunals will be
seeking recruits from the same population where professional skills
are required, be they lawyers, doctors, accountants, surveyors or valuers.
Our discussions and the consultation responses have suggested that the
rates offered are often seriously uncompetitive with other public service
activities: for example, we have been told that doctors can expect to
receive more than double tribunal rates for other forms of advisory
and consultancy work. Indeed, we were told that panel doctors are commonly
paid less than doctors called to give evidence to the tribunal. Individual
recruitment campaigns are unlikely to be able to detect or correct such
systemic supply problems in piecemeal activity. There is also an obvious
risk of imperfect competition within government, with underbidding departments
not being able to recruit enough people, however important their work.
6.47 Secondly, it seems likely that
the comparative weight and responsibility of some posts, and the market
rates for the skills which they require, are being underestimated in
the current arrangements. The most glaring example of this has been
in the MHRTs. These take some of the most responsible decisions in the
whole of the Tribunals System, often on complex and uncertain professional
evidence. Yet the rates offered have for some time compared badly with
posts in the ordinary courts, and with some other tribunals. When we
began work, Chairmen were paid £245.70 a day, compared with £349.52
for Recorders and £327 for part-time Appeals Service legal members.
We were also told of widespread difficulties in recruiting medical members.
Whilst there is a general shortage throughout the National Health Service,
and there are probably a number of other factors, such as the perceived
low status of MHRT service, the rates of pay have done nothing to help.
The DH has recognised this problem and has recently announced substantial
changes. We welcome that. But these figures show what can happen to
rates of pay for a tribunal with a peculiarly difficult and responsible
task, in the current unco-ordinated system.
6.48 Our recommendation
that the LCD should assume responsibility for all full-time and part-time
tribunal appointments would, given time, no doubt lead towards a greater
degree of consistency, by enabling the department to take a global view
of all pay. We do not think that this would be sufficient. Our wider
recommendations will establish a coherent Tribunals System. Whilst the
complexity and responsibility of work is likely to vary between the
Divisions of the new system, so justifying differential rates, for the
first time those interested in service in tribunals will be able to
compare the rates offered for different sorts of work, and may well
tailor their applications to areas which appear more remunerative. Once
appointed, it will be open to chairmen and members to apply to transfer
between Divisions to widen their experience. It will become of great
importance to the System that the amounts paid for tribunal work, and
other relevant terms and conditions, should adequately reflect the task,
and be able to take account of any specific problems with recruitment
and retention in particular jurisdictions. We recommend that, as part
of the work towards the establishment of the new System, there should
be a thorough review of the pay and related conditions of service for
all tribunal posts, with a view to a systematised and comprehensive
provision across the new organisation. [115]
6.49 Once the conditions of service
of tribunal members have been determined, the fixing of salary scales
will constitute an important step towards the creation of the new Tribunals
System. Although we are keen to emphasise the distinctiveness of tribunal
service, salaries cannot be fixed without regard to rates of remuneration
in the courts. It will also be a specialised and complex task, which
would best be handled as a single programme by the SSRB, with such assistance
as it might seek from the LCD. But it would be a major addition to its
work for the review body to undertake, and it is not for us to recommend
that it should. If it were not prepared to do so, its work on the salaries
of the main full-time tribunal office holders would have to be supplemented
in relation to the other tribunal members by consultants retained by
the LCD.
6.50 There is
an important principle which should guide that review. The new system
will need the professional and other skills of a wide variety of people,
for many different functions. Adequate premises, accessible locations
and flexible tribunal hours may be as important to many potential tribunal
members, who may be combining tribunal work with other equally pressing
demands on their time, as they are to users of tribunals. Terms and
conditions of service should take these factors into account and reflect
the complexity and weight of the tasks which they are required to carry
out, and the scarcity of the necessary skills. They should not be artificially
determined by any apparent hierarchies within the system. In particular,
it might be appropriate for the review to recommend that expert members
with scarce skills should be paid more than a legally qualified member
or chairman. [116]
Status
6.51 The view that the status of
chairmen and members is inferior to that of other adjudicators, such
as judges or ombudsmen, is not confined to MHRTs. We were told it was
held by tribunal members and users in some other tribunals. The reasons
for a perception of low status are varied: poor training, unsatisfactory
working environments, inconvenient locations, and conditions of service,
including lack of recognition of the valuable service members perform
for society, often in addition to other work. One of the aims of the
recommendations of this Review is to ensure that tribunals dispense
first-class justice, and command the full confidence of all who use
them, of decision-makers and of the courts. Providing suitable conditions
of service and setting properly comparative pay rates relevant to a
modern Tribunals System is essential to that.
Titles
6.52 Some of
those who responded to the Consultation Document, mostly tribunal members,
argued that the status of legal tribunal appointments, and therefore
the quality of recruits, would be increased if some or all of them carried
the title of judge. Since that title is now nearly universal in the
courts, there is some force in this argument. There would, however,
be several problems for the system we envisage. It would reduce the
emphasis that we wish to see on tribunals doing different things from
the courts, and working in different ways. In particular, it would be
less easy for tribunal users to appreciate that the panel leaders have
a distinctive enabling role. It is perhaps not entirely appropriate
in a system which is not an adversarial one. It might also, undesirably,
suggest that there is a difference in status, as well as of functions,
between lawyer and expert members. For all these reasons, we consider
that the use of the judicial title in tribunals is inappropriate. The
title of "chairman", now of universal application, should
be regarded in tribunals as sufficient in its own right. [117]
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