|
|
Chapter Seven - The conduct of tribunals
7.1 The changes we have outlined
in earlier chapters of this report aim to assist users by outlining
a structured approach to the provision of information which will enable
them to bring their own cases in the great majority of cases; by setting
up a clearly independent Tribunals Service to help them in that as far
as possible, whilst supporting the tribunals themselves; and by establishing
a Tribunals System with a clear, coherent structure. Much of that discussion
has been about the ways in which tribunal business is distinct from
the courts. This chapter explains how tribunals hear cases differently
from the courts, and how that distinctiveness should be developed to
enable users to have confidence that they can cope within the System
without representation.
An enabling approach
7.2 In common law jurisdictions,
courts are conducted on an "adversarial" footing, by which
we mean that the judge is enabled to get at the truth by holding the
ring while each side presents its own case and assails that of its opponent.
This is the style in which United Kingdom (UK) lawyers are trained,
and to which both they and the general public are accustomed —
a tradition fostered by seeing on television courtroom scenes which
are often confrontational, as well as adversarial in the technical sense
explained above. When represented, where necessary by lawyers, parties
need not find the courtroom atmosphere oppressive, even though the environment
is strange to them. Where parties are not represented, they may be at
a disadvantage through unfamiliarity with procedure or inability to
express themselves satisfactorily. Equally important, they may feel
themselves at a disadvantage, a problem heightened when one party is
represented and the other is not.
7.3 It is sometimes said that the
adversarial approach is not a problem because the style adopted is "inquisitorial".
That style is mostly followed in legal systems which are based on developments
of Roman law, where the judge or adjudicator takes full control of the
proceedings, and governs the participation of the parties. It is certainly
possible for tribunal proceedings to be conducted in this manner, and
we have seen examples in Australia. But none of those we have observed
in this country can be described as inquisitorial.
7.4 Instead, in
greater or lesser degrees, tribunals have developed different ways of
assisting unrepresented parties, in particular when the encounter is
between citizen and state, and departments are represented by an official
or an advocate who is familiar with the law, the tribunal and its procedures.
In these circumstances, tribunal chairmen may find it necessary to intervene
in the proceedings more than might be thought proper in the courts in
order to hold the balance between the parties, and enable citizens to
present their cases. All the members of a tribunal must do all they
can to understand the point of view, as well as the case, of the citizen.
[118] They must be alert for factual or legal aspects of the
case which appellants may not bring out, adequately or at all, but which
have a bearing on the possible outcomes. It may also be necessary on
occasion to intervene to protect a witness or party, to avoid proceedings
becoming too confrontational. The balance is a delicate one, and must
not go so far on any side that the tribunal’s impartiality appears
to be endangered. An unrepresented citizen will naturally feel discomforted
if he feels that the tribunal is favouring the Government side. This
may need particular care when the role of the state’s representatives
is often geared to assisting the tribunal to understand considerable
legal and factual complexities. In party and party tribunals, where
the adversarial model is stronger, one party may feel that the other
is getting too much help.
7.5 We are convinced
that the tribunal approach must be an enabling one: supporting the parties
in ways which give them confidence in their own abilities to participate
in the process, and in the tribunal’s capacity to compensate for
the appellants’ lack of skills or knowledge. [119] The greatest
need for that will be during hearings, which are stressful for unrepresented
parties, as was made evident by responses to our research study. One
of those who responded said of a hearing in front of the Social Security
Commissioners: "I really don’t think any tribunal is suitable
for a layman like me... My solicitor did all the talking for me. I didn’t
speak at all because it was way over my head".
7.6 In reviewing the civil justice
system generally29,
Lord Woolf found that all parts of the system had become unnecessarily
confrontational, because litigants had become used to controlling the
process. Many recommendations were geared to reducing the adversarial
approach, which he recognised as giving rise to unnecessary expense
and delay and an inequality of arms between a powerful, wealthy litigant
and a weak, under-resourced one. One of the key reforms was that the
individual courts should employ better case management procedures to
rebalance control between the parties and the courts, and further support
the users. Clearly, the onus is even greater on tribunals, if users
are to be able to make the best of their cases and present them effectively.
We make more detailed comment about the tribunal’s management role
in Chapter Eight, including proposals for registrars in the new tribunal
Divisions. Both the registrars and tribunal staff should have clearer
responsibilities for explaining to users what is required to prepare
a case effectively for the tribunal, and the effect and implications
of any of the tribunal’s interlocutory decisions.
Appointments
7.7 The distinctive
nature of tribunal proceedings should be mentioned in advertisements
for chairmen and members, and it should be made clear that candidates
will be chosen for their ability and propensity to develop and display
the necessary interpersonal skills, as well as possessing other relevant
professional skills and knowledge. [120] All appointments should
be for a renewable period of five or seven years. [121] Subject
to age, renewal for further such periods would be automatic, unless
there were grounds for non-renewal, which would include misbehaviour,
incapacity, and failure to comply with sitting and training requirements.
[122] Similar grounds for removal should be prescribed by the Lord
Chancellor with the concurrence of the relevant minister in the devolved
administrations and of the Lord Chief Justice or the Lord President
of the Court of Session, or the Lord Chief Justice for Northern Ireland.
[123] There should be an upper age limit of 70. [124]
Any lesser limit would exclude many experts who are less readily available
before they retire. Members should be assured not of a minimum number
of sitting days but of a fair share of the sitting days available to
the members of their own tribunal. [125] Those who are qualified
to sit as chairmen or as members in one tribunal should be entitled
to become qualified to sit additionally or alternatively in other associated
tribunals, as already occurs in the Appeals Service. [126]
7.8 The Lord Chancellor’s Department
(LCD) gave us full and helpful briefing on the new approach to appointments
being adopted for England and Wales. That will introduce a new spirit
of professionalism calculated to promote public confidence in the process.
The broad approach should meet fully the requirements of the new Tribunals
System. There will, however, be some special issues.
7.9 At the heart of the new approach
is intended to be a new Commission for judicial appointments, to be
responsible for a continuous audit of the processes and policies for
making and reviewing judicial appointments, for handling grievances
and appeals resulting from the application of these processes and policies,
and for recommending improvements and changes to the Lord Chancellor.
The Commission will comprise a First Commissioner, who will not be a
judge or lawyer, and up to ten Commissioners. All will be part-time
appointments. It is currently envisaged that not more than one-third
of the Commission will have a legal background.
7.10 In recommending
the establishment of a Judicial Appointments Commission30,
Sir Leonard Peach clearly saw the Commission as including tribunal posts
within its remit. In our view, the fact that appointments to tribunals
and to the ordinary courts are made from much the same pool of candidates,
using similar criteria and procedures, would make anything else anomalous.
[127]
7.11 This will,
of course, mean that the Commission’s remit will extend to Scotland,
or to Scotland and Northern Ireland, in relation to some appointments
to tribunals. Scottish ministers have consulted on a proposal for a
Judicial Appointments Board in relation to the appointments for which
they are responsible and we note that a Judicial Appointments Commission
has been proposed for Ireland31.
It is a matter for them, but if these proposals proceed, it would be
sensible for there to be arrangements for liaison between each of the
responsible bodies on appointments to tribunals. [128]
7.12 Although
courts and tribunals have broadly similar requirements for legal or
specialist knowledge and expertise, they work in different ways. Tribunals
require a different range of developed or potential interpersonal skills.
That, and the large number of appointments concerned, point to the need
for a separation in the Commission’s efforts. The Lord Chancellor
and the new First Commissioner have yet to determine its detailed composition
and functions. We recommend that a Commissioner should have overall
responsibility for supervising tribunal appointments, and should concentrate
on the appointment of lawyers. [129] Another Commissioner should
be responsible for the appointment of non-lawyers. [130] The
Commission should establish a separate committee to oversee its work
on tribunals, on which the First Commissioner might sit but which might
be chaired by the Commissioner with overall responsibility for tribunals.
[131]
The Presidents’
functions
7.13 The Senior
President of the Tribunals System, and the Presidents who will head
the separate Divisions, will have the task to promote by leadership
and co-ordination, both consistency of decision-making and uniformity
of practice and procedure throughout their respective areas of responsibility.
[132]
7.14 The Presidents
will hear personally those cases which raise the most difficult, novel
and complex issues, and those which raise general issues of practice
and procedure for the System or any of its Divisions. [133] They
will be at the cutting edge of the development of administrative law
in their areas, and will need the intellectual and legal skills for
that task.
7.15 Other parts
of their job will be at least as challenging. In the early years of
the establishment of the new System they are likely to require considerably
more time and effort. These will be — in the broadest sense —
management posts. The Presidents will sit on the Tribunals Board. They
will be responsible for forging an effective partnership with the Tribunals
Service, in order to make the most effective use of the members, staff
and other resources in the Tribunals System and Tribunals Service. [134]
They should have statutory responsibility for training and should be
responsible for co-ordination of the programmes developed by the Judicial
Studies Board (JSB) and the detailed implementation of the training
approach in their respective Divisions. [135]
7.16 The Presidents
should ensure that the approach to panel composition is such that, as
far as practicable, cases are allocated to the members with the most
relevant experience and expertise. [136] Each will need also
to consider carefully the Division’s requirements regarding recruitment
and appointments in relation to the nature of the cases arising and
ensure, through the Tribunals Board, that the requirements are communicated
to those responsible for appointments. [137]
7.17 Through their
personal contribution to decisions, and through leading the members
to a common approach to main issues, the Presidents will be responsible
for fostering consistency of tribunal decisions. They will keep under
review the practice and procedures in their area, to identify matters
which need improvement. Lack of consistency of approach was highlighted
as a problem in our research study. One applicant to an Employment Tribunal
cited a particular example: "[W]e went to hear a case the day before
and it was fine, they were all friendly, it was all relaxed, and we
thought oh it’s going to be fine, so we weren’t prepared for
ours not to be so fine." They will take the lead in identifying
problems of decision-making and administrative practice in the Government
department (or other body) against which their Division hears appeals.
Above all, they will be responsible for helping develop the spirit of
the new System. That will need a robust sense of independence from government
in all its forms but the ability to conduct a constructive and appropriate
dialogue with it, a keen sense of the distinctiveness of tribunals and
their functions, and determination to make real improvements in service
to the users whilst doing justice to all. [138] To find the able
men and women required for these posts, the Lord Chancellor will have
to look not only to the ordinary courts, and to lawyers still in private
practice, but also to the many who already give distinguished service
in tribunals. [139] Those who are called on to respond to these
considerable challenges will have the opportunity to show that they
deserve further advancement.
Chairmen
7.18 The chairmen
carry the greatest immediate burden arising from a tribunal’s distinctive
functions. It will fall to them to identify gaps in the legal or factual
content of the case put by either side, and to determine what steps
should be taken to fill them. The need for that is obviously likely
to be greatest for appellants, particularly unrepresented appellants.
The chairmen will have to take the leading role in identifying those
parties who are struggling with tribunal procedures, and in working
out what can properly be done to assist them. [140] Although
current recruitment material refers to tribunals’ procedure being
different from that of the courts, the functions should be clearly set
out and specified as being a main activity for chairmen or legal members.
[141] It will be particularly important in assessing applications,
and in interview, to recognise that few lawyers will have had much opportunity
to develop these particular skills in practice. Assessment should therefore
concentrate on the potential to develop them, and on an attitude of
mind sympathetic with their exercise. The LCD recruitment panels now
include a lay interviewer as well as a serving judge or tribunal member.
The lay member on recruitment panels should have the task of exploring
whether the applicants’ achievements and potential make them suitable
for taking the lead in the "enabling approach" that we consider
is vital.
Non-lawyers
7.19 The review consulted specifically
about the role of lay members. We received many representations in favour
of wide use of non-lawyers. They were felt to have a valuable role in
ensuring that tribunals were representative of the communities which
they serve and in which they operate. It was said that they broadened
the experience which tribunals brought to bear on a decision, particularly
in relation to decisions of fact. It was suggested that the presence
of people without an obviously expert qualification helped some users
cope with the stressful experience of appearing before a tribunal. Many
responses also stressed that lay members were significantly more focussed
and direct if they knew what their purpose was in the tribunal process,
and had confidence that they had a distinctive contribution to make.
There were many references to the need to appoint people with relevant
knowledge or expertise. Tribunal members who were themselves disabled
were, for example, thought to make a major contribution to disability
appeal tribunals in which they sat.
7.20 The statutory criteria for the
appointment of non-lawyers to tribunals vary widely. The majority of
such appointments are of professional or other experts, such as the
doctors appointed to Mental Health Review Tribunals (MHRTs) or the Appeals
Service, or the surveyors and valuers appointed to Rent Assessment Panels.
For others, there is a more general appointment power. Besides a lawyer
and doctor, MHRTs, for example, must comprise persons "having such
experience in administration, such knowledge of social services or such
other qualifications or experience as the Lord Chancellor considers
suitable". There appears to be an almost universal practice of
referring to those appointed under this head as "lay members".
The new social security legislation provides for the appointment to
social security appeal tribunals "of persons appearing to the President
to have knowledge or experience of conditions in the area and to be
representative of persons living or working in the area", as well
as of "persons who are experienced in dealing with the needs of
disabled persons in a professional or voluntary capacity; or because
they are themselves disabled, but ... not includ[ing] medical practitioners"
to disability benefit appeal tribunals. In the case of appointments
to the Immigration Appeal Tribunal, the Lord Chancellor has an unfettered
jurisdiction to appoint "such number ... of other members as he
considers appropriate".
7.21 Appointment for specific professional
or other expertise creates a valuable focus for the member’s role
on the tribunal. Medical members of MHRTs are, for example, told that
their main activities will include examining the patient and his medical
history and advising the President or Regional Chairman of any matters
which may require further directions; to advise on and explain medical
terminology and technicalities, as required; and to question the patient’s
doctor in relation to the patient’s history, progress, treatment,
prognosis and future care. That shapes both the specific responsibility,
and the medical member’s functions as a member of the tribunal32.
It also helps the process of appointment. Candidates are invited to
assess their own experience and capabilities against the criteria for
appointment (part of the process to which Sir Leonard Peach’s report
attaches particular importance), and this is obviously much assisted
if there is a clear target to aim at.
7.22 Few who responded to our consultation
argued for the appointment of "lay members" with no specific
expertise or qualifications for the work of the tribunal, whose function
was to be representative of the population in a way akin to the members
of a jury. The more general the appointment qualification, the more
difficult it is to specify in recruitment and training material what
the distinctive contribution is to be. That is shown clearly in some
of the recruitment material which we have seen. For example, applicants
to be a lay member of the Immigration Services Tribunal (where there
is completely unfettered qualification provision) are told that they
will be "required to have a substantial experience in Immigration
Services or in the law and procedure relating to immigration" and
a sound knowledge and understanding of the issues likely to confront
the tribunal, and that experience in the field of professional regulation
would be an advantage. It is, however, possible to describe the lay
member’s main activity only as "reading and assimilating papers
in an appeal before it commences" and "participating in decision-making".
We received a number of representations that the absence of clearly
defined qualifications and functions made it more difficult to train
lay members, and made them less effective in hearings.
7.23 All tribunal
members should be appointed on the basis of the particular contribution
which they have to make to its work. [142] That should be defined
in criteria. In some tribunals, the criteria will be as clear cut as
the possession of a professional qualification, for example as a medical
practitioner or a valuer. In some areas they will be specific knowledge
or experience, such as knowledge of the conditions in relevant countries
in relation to immigration and asylum. A particularly valuable example
is the experience brought to the Employment Tribunals as representatives
of employers or of employees. In some work, the criteria could be knowledge
or experience of local conditions, or as representing persons living
or working in an area, as in the current social security legislation.
Those criteria should be expressed in statute, but should always be
sufficiently explicit to form a clear basis for recruitment material
and for training, by defining the main activities to be expected of
a specialist member. [143] [144] Statutory qualifications for
appointment to all tribunals should therefore be amended to prescribe
specific criteria for appointment. This may, of course, include knowledge
of local circumstances and of the local community.
Use of non-lawyers
7.24 Since we
are recommending that appeals should be on a point of law only, the
first-tier tribunals will be the sole judges of fact. It is here that
one of the distinctive features of tribunals will have its greatest
part to play: the use of non-lawyers as an integral part of the decision-making
process. The clearer the distinctive contribution and expertise for
which non-lawyers are added to the tribunal, the better focussed and
more effective their performance is. Divisional Presidents and Regional
or District Chairmen will be responsible for deciding whether non-lawyer
members should sit on particular classes of case (or individual cases);
and what is the particular function they are to fulfil. [145]
7.25 In some jurisdictions
it will be necessary to pay special attention to making sure that users
understand the procedure, and to helping them to present their cases
effectively. There is evidence33
that many users find multi-member panels easier to address. Where there
is a particular need to elicit facts, multi-member panels also allow
a division between the members of topics for questioning. Panels should
not comprise more than three members, because more than three is likely
to seem or to be oppressive. [146]
7.26 The current
arrangements where tribunal decisions are taken on the basis of a simple
majority of the panel have worked well, even in the appellate tribunals
such as the Employment Appeal Tribunal (EAT) which consider cases only
on the basis of a point of law, but where nevertheless it is possible
for the non-lawyers to out-vote the judge. To fulfil their roles properly,
non-lawyers will need careful training and guidance from the chairman
in the process of finding facts, and in particular in the weighing and
evaluation of evidence, as one of the most basic of their case-handling
skills. [147]
Assessors
7.27 Some tribunals
may also make use of "assessors": professionally qualified
persons who can give expert opinion or advice. We consider that tribunals
should have the ability to continue to engage assessors who may have
a particular role in pre-hearing procedure. For example, they may advise
what expert evidence may be required and available if an appellant is
unrepresented. [148] A major feature which distinguishes tribunals
from the courts, however, is the appointment of expert members to the
panels. This is strongly supported by those who made representations
to us. We have already made clear our view that what is important is
getting the members with the right skills and experience for tribunal
panels.
Fairness
7.28 Taken together, the recommendations
which we make for the consolidation of all tribunal appointments under
the Lord Chancellor, applying clearer qualifications for recruitment,
should lead to a system that will be more transparent, fair and effective
than the range of appointment systems it replaces.
Training
7.29 The principal way to address
the fundamental issues that confront tribunals is by training. Tribunal
chairmen and members have told us how difficult they find it to strike
the right balance between helping appellants and maintaining their impartiality.
But work is already in hand towards helping them to develop the necessary
skills.
7.30 An analysis of training available
was carried out by a team from Birmingham University for the Tribunals
Committee of the JSB. The study found that there is wide variability
of initial and ongoing provision, both between tribunals and within
tribunals, with respect to format, content, attendance requirements,
and funding. Some tribunals have designated budgets and national training
officers, others do not. In some tribunals introductory training is
compulsory for chairmen and members: in others, for chairmen only. When
training is organised on a regional basis, marked variation in quality
often results. Many providers of training have themselves had no instruction
in how to train.
7.31 After explaining that current
training largely depends on inputting information by means of lectures
and directed reading, the JSB’s summary of the study continues:
"There
is relatively little training provision on the conduct of a tribunal,
the skills and behaviours required for effective chairing and membership,
for example problem solving, putting parties at ease. Little evidence
was found during the research of concern about learning and practice
outcomes or competency in role. The common assumption that seems to
underpin current training is that the provision of lectures and seminars
will instil an adequate level of knowledge among tribunal chairmen
and members. There was also scant evidence that the design of training
events had taken into account the preferred styles of learning expressed
by tribunal chairmen and members ...."34
7.32 The main
need is for improved training in the interpersonal skills peculiar to
tribunals. This should be achieved by a competency based approach to
the training of chairmen and members. [149] To ensure that standards
of provision are maintained, it is essential to have national co-ordination,
which will be easier to arrange when all the Divisions of the Tribunals
System have a President. [150] Each Division should appoint a
national training officer, and set a training budget. [151] The
skills required for the efficient conduct of a tribunal should be imparted
by means of introductory training in core competencies, followed by
continuation training. [152] Training should also be provided
in the additional competencies needed by chairmen, especially those
needed to help them overcome the communication, language and literacy
difficulties experienced by some users. [153] Specialist knowledge
required by the members of some tribunals should be provided in-house.
[154] Members should also have the benefit of a tribunal handbook
and training newsletters which cover such matters as equal opportunities,
European issues and recent case law. [155]
7.33 Tribunals cover a wide range
of subjects. Those presenting the cases vary from illiterate appellants
to specialist leading counsel. Taking account of these variations obviously
calls for differences of treatment which can be suitably accommodated
by an "enabling" approach. But there are some conditions that
must always be satisfied: tribunals should be sensitive to the emotional
stress caused by appearance before a tribunal; users should be put at
ease by the clerk and by the chairman; the chairman should ensure that
users understand the procedure and what is expected of them; and users
should be left with the feeling that they have been fully heard by the
tribunal. To achieve this, personal attributes must be harnessed, ways
of behaving directed, and skills developed so that those who sit in
tribunals treat all parties equally and fairly, and avoid stereotypes
and prejudices, and so that they are aware of the particular needs of
unrepresented parties.
7.34 The JSB has
relevant training expertise, and has analogous oversight of the training
of the magistracy, including provision of "Training for Trainers"
courses which cover the trainers’ role in relation to the core
adjudicative skills. It should be given responsibility for the organisation
and delivery of training for tribunal chairmen, members and registrars
in England and in Wales, for recommending training policy, for establishing
national training standards, and for monitoring the structure and content
of training across all tribunals in England and Wales. [156] Alternatively,
their responsibility should be for UK-wide tribunals, in parallel with
any designated training bodies in Scotland and Northern Ireland.
[157] As a matter of urgency finance is needed now to enable the
JSB to extend its provision of generic training and production of common
training materials and resources, and to extend the training provision
for tribunal training officers. [158]
7.35 The Council
on Tribunals should, through its programme of visits, seek to identify
training needs. [159] The JSB should consult both the Council
and the national training officers on training requirements. [160]
The regular discussions between Tribunal Presidents and departments
should also help to identify possible training needs.
Performance appraisal
7.36 Any arrangements for appraisal
must strike a balance between the obligations of judges and tribunals
to the public and the overriding constitutional principle of judicial
independence. Judges must be able to determine each case fairly and
on its merits without fear of improper intervention. Their obligations
are imposed and accepted under the judicial oath. Most of their work
is carried out in full public view, and is subject to scrutiny by the
press which, though informal, is potentially intensive. Almost all their
decisions are subject to appeal.
7.37 Tribunals, however, stand in
a different position. Few observers attend hearings. Some of their chairmen
and members sit full-time, others part-time; some are legally qualified,
others not; and the range of their experience is considerable. Though
their constitutional position differs, independence is just as important
for them.
7.38 Performance
appraisal has as its aim support for chairmen and members in the maintenance
of standards. All should participate in an annual review of their performance
while sitting. [161] Tribunals should aim to establish a culture
of advancement through assessment. In addition to ensuring high standards
of performance, assessment will help to maintain uniformity of practice.
It follows that assessment is a requirement for which a member’s
terms of service should stipulate. But it is obvious that, for proper
conduct of tribunals, members should have advice, guidance and information
readily available to them, irrespective of assessment. [162]
7.39 Of primary
importance is formal training for new chairmen and members. Its efficacy
can only be tested by appraisal. The President should ensure that there
is adequate induction for new members. Support should also be afforded
by mentoring, advice and guidance from experienced members. [163]
As members become more experienced they should continue to benefit by
advice and assessment. They should be assisted to improve their skills,
and there will be opportunities for identifying those who are ready
to hear more difficult cases or to be appointed to sit as chairmen themselves
or to sit in different tribunals.
7.40 From this process of inducting
and advancing new members it would be invidious to exempt those who
are more experienced, especially since the more experienced they are,
the less likely they are to have received the benefit of instruction
in particular skills, seldom needed in court, which the provision of
all due assistance to unrepresented users requires. It may also relieve
the discomfiture that invigilators might feel if they were themselves
immune from assessment. The age of learning on the job, and seat-of-the-pants
conduct of hearings, is gone. Today the need for a more tutored approach
must be acknowledged. The more senior those chairmen are who accept
this, the more readily will new members subscribe to it. In those jurisdictions
where it has already been introduced members almost universally find,
as do newly appointed magistrates, that instruction and support sensitively
provided afford significant reassurance.
7.41 It is important that the more
experienced chairmen and members of tribunals should recognise the benefits
to be derived from instruction, and that none should regard themselves
as incapable of improvement, because the improvement in question is
not in the knowledge and application of the law, but in the particular
skill of helping users, especially those who are unrepresented, without,
however, favouring them or giving the appearance of doing so.
7.42 Assessments
are of chairmen and members, not of their decisions. The skills required
for tribunal work by a chairman, which may be the subject of appraisal,
relate to preparation for hearings, list management, preview of cases
with other members, the conduct of the hearing itself, the deliberations
of the members of the tribunal, and the composition and prompt delivery
of the decision. Those conducting assessments should check that, if
decisions cannot be given at the conclusion of a hearing, the delay
before they are made available is being kept to a minimum. [164]
7.43 Assessments are not concerned
with the rightness or wrongness of decisions or with any aspect of them
(like consistency) which depends on qualitative judgements of the decisions
themselves or of other decisions with which they could be compared.
Assessments of members are best conducted by chairmen sitting with them.
Assessments of chairmen are best conducted during the course of a hearing,
by means of a visit by the President of the Division, or by a senior
chairman specifically tasked to do so. Such assessments are designed
to make sure that the persons under review are progressing satisfactorily
and are continuing to maintain the high standards expected of them.
In the Appeals Service a sophisticated system of performance appraisal
already exists35.
It affords a model which other tribunals should emulate.
7.44 It must never
be forgotten that no assessment of those who sit in tribunals can be
properly conducted unless the assessors themselves have been trained
in the special skills required. That training should be the responsibility
of the JSB. [165] Arrangements for monitoring training needs
should be made by the Council on Tribunals, see paragraph 7.35. [166]
7.45 Systems should be put in place
to set standards for tribunal members and staff in the performance expected
of them. [167] Management information systems will be needed
for the provision of facilities (such as the accessibility of venues,
the availability of interpreter services, and other special needs facilities);
for the provision of good, timely information and advice; for proportionality
in relation to resources used for particular types and numbers of cases;
and for an acceptable time-frame for process, with sufficient flexibility
to be able to adapt procedures to individual unrepresented appellants,
but with clear guidelines on the standards that will be expected as
normal.
The Council on Tribunals
7.46 Most of the general recommendations
made about tribunals by Franks are valid still and are complied with
by tribunals today. But what Franks did not prescribe was any structure
into which new tribunals could be appropriately placed. Since then,
as the number of tribunals has doubled, so they have grown apart from
each other, until to-day in default of any central direction they have
become diverse and unco-ordinated. Franks probably intended that direction
to come from the Council on Tribunals. It has not.
7.47 The Council possesses a great
deal of knowledge about the operation of tribunals to-day. It has made
some efforts to promote policies and standards. Its Model Rules of Procedure
are a major achievement. Its work on independence of tribunals and on
standards of accommodation and of training deserve notice. It has also
drawn attention to the importance of competence in tribunal chairmen
and members. But it has not published its visit reports, nor exposed
the defects they identified. It has failed to gain publicity for its
criticisms, for example in its Annual Reports, whether or not the failure
has been due to departmental opposition. Visitors who have given evidence
to the Council have not found the experience as challenging as they
should have. In focussing on the need for detailed comment on specific
issues, it has given insufficient emphasis to strategic thinking about
administrative justice generally or about tribunals in particular.
7.48 Because departments
were under no obligation to respond to its criticisms, the Council must
have felt that any good it did had to be done by stealth, rather than
by confrontation, lest departments might take offence and withdraw their
collaboration. With unresponsive departments, and no Select Committee
to report to, it has not been giving such an account of itself as meets
the demands of the twenty-first century. But given the leadership and
energy of its Chairman, these defects are remediable. We endorse the
change programme included in its latest annual report. The Council should
be retained, to fulfil the important new roles that we envisage for
it. [168]
7.49 The Council’s
primary role should be to act as the hub of the wheel of administrative
justice, or at any rate tribunal justice. Just as tribunals themselves
cannot be expected to function properly without a Board, so the Council
is needed to co-ordinate the arms of the system of administrative justice
of which they are parts. The Council should monitor the development
of the new Tribunals System during the first few years of its existence,
and also check that the practices and procedures of Government departments
are ECHR compliant. [169] The Council should have as a primary
duty the championing of the cause of users. To do this, it must include
members with the experience and perspective of users. [170]
7.50 The Council’s
functions should include taking evidence from user groups, from the
Tribunals Service, from departments, and from the JSB about how well
the system is working. [171] This oversight should be in addition
to, not instead of, the direct relationship that will exist between
the participants in the tribunal process. The Council should monitor
the training of chairmen and members, proposals for procedural change,
the development of IT, the usefulness of the information provided for
users by the Tribunals Service, and the adequacy of independent sources
of assistance and advice for users. [172] It should continue
its own programme of visits, albeit scaled down, and after each visit
should report its findings at once to the Senior President and to the
President of the Division concerned. [173] The Council should
have standing to supervise tribunals which operate across borders in
the UK. [174]
7.51 The work
of the Council should be reported to the relevant Ministers and to an
appropriate Select Committee such as the Home Affairs Parliamentary
Select Committee. [175] The Council’s reports, and in particular
its Annual Reports, should be published to a wider public, as will befit
its higher profile. [176] The Council drew our attention to instances
of it making arguments to departments, which had received no, or only
a perfunctory, response. A generally higher profile for the Council
will reduce the chances of that happening in the future. We think there
should, however, be a general expectation that where the Council has
made formal representations to a Government department it should receive
a reasoned and constructive reply, capable of being put into the public
domain. That applies particularly strongly to material in the annual
report, and even more to the Council’s occasional special reports.
The Government may wish to consider preparing a reply to the Council’s
annual reports in the future. We think there should be replies to any
special report. [177]
7.52 There is
a further anomaly which we think should be corrected. Departments are
required to consult the Council in relation to the drafts of Statutory
Instruments, but not during the preparation of draft Bills for primary
legislation. Nor are they required to tell Parliament what the Council
thought of draft legislation, and what they have done in response. We
think this represents a real weakness in the current arrangements, and
one which would certainly undermine the enhanced role that we see for
the Council in the future. The Council is the single greatest source
of authoritative advice on matters relating to tribunals, and in the
future it will be more clearly speaking for the user. Parliament should
be aware of any concerns raised from that quarter. We recommend that
any concerns raised by the Council should be recorded in the explanatory
memoranda for Bills and Statutory Instruments, with the department’s
response. [178]
7.53 The assumption of these tasks
need not require significant extra resources. Redeployment of existing
capacity, coupled with the increased attraction to high quality members
and staff that may be expected to flow from the enhanced standing of
the Council should enable it to do what is needed without a substantial
increase in staff.
7.54 In the longer
term, like the Administrative Review Council in Australia, the Council
should be made responsible for upholding the system of administrative
justice and keeping it under review, for monitoring developments in
administrative law, and for making recommendations to the Lord Chancellor
about improvements that might be made to the system. [179] To
assist users through the system, the Council should be required to ensure
that the various mechanisms for redressing the grievances of members
of the public work together coherently and efficiently. Joined up government
demands no less. [180] Finally, the Council should be enabled
to commission research into the operation of administrative justice
both in the UK and abroad. [181]
7.55 Our proposals
will remove the need for much of the way in which the present Council
spends its time. It is now essentially advisory. The Council should
be more proactive, providing more conferences, more detailed tribunal
information, more special reports, and more guidance on standards and
best practice. It should have a right to attend the deliberations of
tribunals. The results of visits should be discussed with tribunals,
and the Council’s recommendations acted on. [182]
A new Association
7.56 In support of the Tribunals
Board in developing ethical and professional standards amongst tribunal
members, there is a possible role for a strong new body, resembling
the Magistrates’ Association. But that would be a matter for tribunal
members to arrange on their own initiative, if the idea commended itself
to them.
29 Access to Justice, July 1996, HMSO
30 An Independent Scrutiny of the Appointment Processes
of Judges and Queen’s Counsel in England and Wales; LCD; December
1999
31 Review of the Criminal Justice System in Northern
Ireland; Criminal Justice Review Group; March 2000; TSO
32 It will, however, be clear from the note on the
tribunal that we have fundamental concerns about the medical member’s
dual roles as member and examiner.
33 See for example, Frost, C and Howard, A, Representation
and Administrative Tribunals, London, 1977
34 Training Needs Analysis - an Executive Summary,
May 1999, Professor Hazel Genn, para 5.3
35 See Cole, G “Maintaining Judicial Standards
in the Independent Tribunal Service” Chapter 19 in Harris M and
Partington M (eds) Administrative Justice in the 21st Century (Oxford,
1999)
 Back
to the Contents Page
|
