An Overview
The Review
1 In the 44 years since tribunals
were last reviewed, their numbers have increased considerably and their
work has become more complex. Together they constitute a substantial
part of the system of justice in England and Wales. But too often their
methods are old-fashioned and they are daunting to users. Their training
and IT are under-resourced. Because they are many and disparate, there
is a considerable waste of resources in managing them, and they achieve
no economies of scale. Most importantly, they are not independent of
the departments that sponsor them. The object of this review is to recommend
a system that is independent, coherent, professional, cost-effective
and user-friendly. Together tribunals must form a system and provide
a service fit for the users for whom they were intended.
Tribunals now
2 There are 70 different administrative
tribunals in England and Wales, leaving aside regulatory bodies. Between
them they deal with nearly one million cases a year, and they employ
about 3,500 people. But of these 70 tribunals only 20 each hear more
than 500 cases a year and many are defunct. Their quality varies from
excellent to inadequate. Our terms of reference require them to be rendered
coherent. So they have to be rationalised and modernised; and this Review
has as its four main objects: first, to make the 70 tribunals into one
Tribunals System that its members can be proud of; secondly, to render
the tribunals independent of their sponsoring departments by having
them administered by one Tribunals Service; thirdly, to improve the
training of chairmen and members in the interpersonal skills peculiarly
required by tribunals; and fourthly, to enable unrepresented users to
participate effectively and without apprehension in tribunal proceedings.
Independence
3 The Franks Committee said that
tribunals should be independent, accessible, prompt, expert, informal,
and cheap. The most important of these qualities is independence. Even
in cases where the protection of the Human Rights Act is not available
on technical grounds, users are in any event entitled at common law
to a fair hearing by an independent and impartial tribunal. Yet nowadays
when a department of state may provide the administrative support for
a tribunal, may pay the fees and expenses of tribunal members, may appoint
some of them, may provide IT support (often in the form of access to
departmental systems), and may promote legislation prescribing the procedure
which it is to follow, the tribunal neither appears to be independent,
nor is it independent in fact. Responsibility for tribunals and their
administration should not lie with those whose policies or decisions
it is the tribunals’ duty to consider. Otherwise for users, as
has been said, "Every appeal is an away game."
A Tribunals Service
4 There is only one way to achieve
independence and coherence: to have all the tribunals supported by a
Tribunals Service, that is, a common administrative service. It would
raise their status, while preserving their distinctness from the courts.
In the medium term it would yield considerable economies of scale, particularly
in relation to the provision of premises for all tribunals, common basic
training, and the use of IT. It would also bring greater administrative
efficiency, a single point of contact for users, improved geographical
distribution of tribunal centres, common standards, an enhanced corporate
image, greater prospects of job satisfaction, a better relationship
between members and administrative staff, and improved career patterns
for both on account of the size and coherence of the Tribunals Service.
It should be committed by Charter to provide a high quality, unified
service, to operate independently, to deal openly and honestly with
users of tribunals, to seek to maintain public confidence, and to report
annually on its performance.
Administrative support
5 The independence of tribunals would
best be safeguarded by having their administrative support provided
by the Lord Chancellor’s Department. The Lord Chancellor’s
policy responsibilities do not give rise to tribunal cases. He has extensive
experience of managing courts, and already appoints most tribunal members.
He is also responsible for the administration of the Judicial Studies
Board, through which the training of judges is supervised, and the training
of tribunal members should be furthered. As a Minister he is answerable
to Parliament, and so to the public, for the proper functioning of our
system of justice. He is uniquely well placed to protect the independence
of those who sit in tribunals as well as of the judiciary, through a
Tribunals Service and a Tribunals System analogous with, but separate
from, the Court Service and the courts.
Helping users
6 It should never be forgotten that
tribunals exist for users, and not the other way round. No matter how
good tribunals may be, they do not fulfil their function unless they
are accessible by the people who want to use them, and unless the users
receive the help they need to prepare and present their cases. Working
where possible with user groups, tribunals should do all they can to
render themselves understandable, unthreatening, and useful to users,
who should be able to obtain all the information they need about venues,
timetables, and sources of professional advice. Some of the main needs
relating to access identified by responses to the Consultation Paper
are for original decision-makers to produce reasoned decisions in plain
English or Welsh, and to give a proper explanation of the appeal process.
Legal representation
7 Tribunals are intended to provide
a simple, accessible system of justice where users can represent themselves.
So it is discouraging to note the growing perception that they cannot.
Every effort should be made to reduce the number of cases in which legal
representation is needed. Logically that can only be done by seeking
to ensure (a) that decision-makers give comprehensible decisions, (b)
that the Tribunals Service provides users with all requisite information,
(c) that voluntary and other advice groups are funded so that they can
offer legal advice, and (d) that the tribunal chairmen are trained to
afford such assistance as they legitimately can by ensuring that the
proceedings are intelligible and by enabling users to present their
cases. But however good the support, there will always be a residual
category of complex cases in which legal representation is imperative.
Voluntary and community bodies should be funded so that they can provide
it. Only as a last resort should it be provided by legal aid.
A Tribunals System
8 Combining the administration of
different tribunals will provide the basis for a relationship between
them. But that association cannot properly be called a Tribunals System
until true coherence has been established by bringing within one organisation
without discrimination all those tribunals which are concerned with
disputes between citizen and state (in the guise of either central or
local government) and those which are concerned with disputes between
parties. Only so will tribunals acquire a collective standing to match
that of the Court System and a collective power to fulfil the needs
of users in the way that was originally intended.
Divisions
9 Within the System the tribunals
should be grouped by subject-matter into Divisions in a structure that
is at once apparent to a user, and into which any new tribunal may be
expected to fit. For the first-tier tribunals the Divisions are: education,
financial, health and social services, immigration, land and valuation,
social security and pensions, transport, regulatory and employment.
To entertain appeals from the tribunals in each Division there should
be a corresponding appellate tribunal; and the appellate tribunals should
be grouped together in an appellate Division. Within any Division tribunals
could remain more or less autonomous in much the same way as do the
constituent parts of the Australian Administrative Review Tribunal.
It is important to retain the expertise of members; but it is important
too to improve their flexibility.
Party and party tribunals
10 Employment Tribunals are party
and party tribunals, which for some time past have been acquiring the
complexity and formality of Labour Courts, and losing their original
user-friendliness. It is a trend that must be reversed; and the eligibility
for legal aid, to which, if they were courts, users would become entitled,
would increase the involvement of lawyers and the formality they bring
with them. What has rendered them successful has been the composition
of the tribunal, the absence of fees and the proximity of ACAS. So Employment
Tribunals, like other tribunals, should be administered by the Tribunals
Service. But because they are not true administrative tribunals, and
some of their practices are importantly different, it might detract
from the coherence of the Tribunals System if Employment Tribunals were
to be administered in the same way as all the rest. They and other party
and party tribunals should therefore be administered by a separate section
of the Tribunals Service with its own head.
Dependence
11 It has been suggested that there
is virtue in keeping the policy of a department and the administration
of the tribunal through which it is implemented under the control of
the department. The contrary is true. The very fact that a department
is responsible for the policy and the legislation, under which cases
are brought in the tribunal it sponsors, leads users to suppose that
the tribunal is part of the same enterprise as its sponsoring department.
Encroachment on independence takes other forms. When the salaries and
allowances of tribunal members are determined and paid by the department,
and it also appoints the lay members, their relationship with the department
is discomfiting, and they wish to be relieved of it. The department
may also fund an agency which provides the administrative services for
the tribunal. The department may make the procedural rules for the tribunal,
and under them may have power to intervene in cases to which it is not
a party. In some cases the department by its Secretary of State may
even be a party to proceedings before the tribunal. Not surprisingly
challenges have already been brought against tribunal decisions in reliance
on Art. 6(1) of the ECHR. Irrespective of whether they are successful,
the apparent dependence of a tribunal on its sponsoring department is
indefensible.
A Presidential system
12 The system should be headed by
the Senior President, who should be a High Court judge sitting in one
of the appellate tribunals. Presidents, who should normally be judges,
should each be in charge of an appellate tribunal or of a Division.
Some of those appointed to appellate tribunals will be High Court judges,
if only on a part-time basis. 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. They should also have regular meetings with
departments to help them improve their decision-making. All too often
those who sit in tribunals see themselves, and are regarded by others,
as inferior to the courts. To enhance their standing, as well as their
self-esteem, full-time chairmen should from time to time be appointed
as Presidents of Divisions, and so as Circuit judges. Consideration
should also be given to the appointment to the High Court of Circuit
judges who as Presidents of Divisions have shown themselves worthy of
high judicial office.
A Tribunals Board
13 By contrast with the courts, the
Tribunals System as a newcomer will need to speak authoritatively and
with one voice. It should therefore be directed by a council, which
to avoid confusion may be called the Tribunals Board. It should consist
of the Presidents, 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. The Board’s functions
should include: advising the Lord Chancellor’s Department on qualifications
for chairmen and members, monitoring 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.
Appeals
14 There is a confusing variety of
routes of appeal from tribunal decisions. The system has rightly been
described as a hotch-potch. While it is important that there should
be effective rights of appeal, in some tribunals there are too many
stages, leading to long delays in reaching finality. There should be
a right of appeal on a point of law, by permission, on the generic ground
that the decision of the tribunal was unlawful:
from the first-tier tribunals in each
Division to its corresponding appellate tribunal,
from appellate tribunals to the Court
of Appeal, and
where there is no corresponding appellate
tribunal, to any such court as may be prescribed by statute, or in
default to such appellate tribunal as may be appointed by the Senior
President.
Appellate tribunals
15 An appellate tribunal should have
power in its discretion, if it upholds an appeal, to quash the decision,
to remit it for reconsideration, to grant declaratory relief, or (if
there was no substantial prejudice) to give no relief. There should
be a common time limit of six weeks from the date of issue of the tribunal’s
reasoned decision, or for particular tribunals such other period as
may be prescribed by Statutory Instrument. The enhanced standing of
appellate tribunals makes two consequences appropriate. First, each
appellate tribunal should have power with the approval of the Tribunals
Board to designate those decisions of its own that are to be binding
on the tribunals of its first-tier Division. Secondly, in view of the
appellate system now established, the decisions of both the first- and
second-tier tribunals should be excluded from the supervisory jurisdiction
of the High Court.
Chairmen and members
16 Appointment systems vary, and
some are vulnerable to challenge under the Human Rights Act. All appointments
should be made by the Lord Chancellor (in consultation with ministers
of devolved administrations as appropriate), and should be for a renewable
period of five or seven years. 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. Similar grounds would be prescribed
for removal by the Lord Chancellor with the concurrence of the judicial
heads of the relevant jurisdictions. There should be an upper age limit
of 70. Any lesser limit would exclude many experts who are less readily
available before they retire. Part-time 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. Those who are qualified
to sit as chairmen or as members in one tribunal should be entitled
to become qualified to sit in other associated tribunals, as already
occurs in the Appeals Service.
Lay members
17 There is no justification for
any members to sit, whether expert or lay, unless they have a particular
function to fulfil, as they do in the Employment Tribunal. In all other
Divisions the President (or Regional or District Chairmen) should have
a discretion whether lay members should sit in any particular case or
category of cases. By not having lay members sitting in all cases in
which they are eligible to sit, expense will be saved which can more
providently be applied to the training of the lay members who do sit.
They should be afforded instruction in the process of finding facts,
and in particular in the weighing and evaluation of evidence.
Training
18 The prime necessity is for improved
training in the interpersonal skills peculiar to tribunals so as to
enable users to cope on their own. It is a mistake to suppose that they
can all be acquired simply by learning on the job. Rather should they
be acquired by a competency-based approach to the training of chairmen
and members. To ensure that standards of provision are maintained it
is essential to have national co-ordination, which will be easier to
arrange when all groups of tribunals have a President. Each should appoint
a national training officer, and work to a designated training budget.
The skills required for the efficient conduct of a tribunal should be
imparted by means of introductory training in core competencies, sustained
by continuation training. Instruction 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. Specialist legal knowledge required by the
members of some tribunals should be provided in-house. All full-time
and part-time chairmen and members should participate in an annual review
of their performance while sitting. They should also have the benefit
of a tribunal handbook and training newsletters.
The Judicial Studies Board
19 The JSB has relevant training
expertise and has analogous oversight of the training of the magistracy.
It should be given responsibility for the organisation and delivery
of training for tribunal chairmen and members in England and Wales,
for recommending policy on training, and for establishing national training
standards. It should monitor the structure and content of training across
all tribunals in England and Wales. As a matter of urgency finance is
needed now to enable it 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.
Measuring performance
20 Appraisal must strike a balance
between duty to the public and the independence of adjudicators. All
chairmen and members should be periodically assessed to ensure that
they are applying the skills needed to assist unrepresented users without,
however, favouring them. The aim is to support chairmen and members
in the maintenance of standards. To new members support should of course
also be afforded by mentoring, advice and guidance. A culture should
be created of advancement through assessment. But assessments are of
members (or chairmen), not of decisions or of the correctness of decisions.
For a new member assessments are best carried out by a senior chairman
in course of a sitting, and for a chairman by the President as a visitor
to the hearing. To do this, assessors will themselves need special instruction.
The Council on Tribunals
21 The Council should act as the
hub of the wheel that is the Tribunals System. Its functions should
include taking evidence from user groups, from the Tribunals Service,
from the departments, and from the Judicial Studies Board about how
well the system is working. 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 be consulted
by the Lord Chancellor’s Department about recruitment criteria,
and by the Legal Services Commission about the adequacy of independent
sources of advice. The Council should monitor the training of chairmen
and members, proposals for procedural change, the development of IT,
and the accessibility of the Tribunals Service to users. Departments
should be under a duty to consult the Council on primary (in addition
to secondary) legislation, and it should be given specific statutory
authority to comment on it. The Council should also be accorded a general
statutory right to attend the deliberations of tribunals. After each
visit it should report its findings at once to the President of the
Tribunals System and to the President of the Division concerned. The
work of the Council should be reported to the relevant Ministers and
to an appropriate Select Committee such as the Select Committee on Home
Affairs. Its reports, especially its Annual Reports, should be published
to a wider public, as will befit its higher profile.
Case management
22 Cases take too long and are often
ill-prepared. Their length should be measured from the date of the decision,
and vigorous time constraints applied to them, supported by sanctions.
Poor preparation should be counteracted by active case management, proficiently
and sensitively exercised. In each Division one or more registrars should
be responsible for determining what attention each case or type of case
should receive. Registrars should have powers to order production of
documents and attendance of witnesses, to order the decision-maker to
attend the hearing, to issue directions, and to refer to local courts
parties guilty of contempt in the face of the tribunal. They should
seek to minimise the length of oral hearings by ordering the exchange
of documentary evidence before the hearing, and by directing that written
arguments from the department whose decision is challenged be sent before
the hearing to the tribunal and to the other party. Where a department
fails without reasonable excuse to comply with an order or direction,
the tribunal should have power to allow the appeal or application which
the department is opposing. In citizen and state tribunals no power
to award costs is needed, except power to make the equivalent of wasted
costs orders.
Procedures
23 The same overarching principle
applies to tribunals as is now enshrined in the Civil Procedure Rules,
that they (and presenting officers) should be under a duty to ensure,
so far as practicable, that the parties are on an equal footing, and
that each case is dealt with economically, proportionately, expeditiously
and fairly. So far as possible tribunals should all be regulated by
the same rules of procedure, which should be based on the Council on
Tribunals’ Model Rules, and for which provision should be made
in enabling legislation. They should be set out comprehensibly in guidance
notes and leaflets. Many users of tribunals may still prefer oral hearings
to written procedures. It is important to ensure that all hearings are
conducted efficiently and economically.
Improving departments’ decision-making
24 Some departments operate a system
of internal review of decisions which are appealed against. This both
reduces the number of indefensible decisions coming to tribunal hearing,
and enables the department to improve its primary decision-making. There
should be automatic review of every decision appealed against to make
sure that the challenge is worth resisting. Although tribunals are well
placed to identify areas where departments’ primary decision-making
needs to be improved, few do so systematically. In order to influence
departments usefully, tribunals must make consistent decisions. Departments
may have to apply them to many cases. Tribunals should identify, analyse
and suggest remedies for systemic problems. Departments for their part
should have a central capacity for scrutinising tribunal decisions,
drawing out common themes, and disseminating to decision-makers the
lessons learned. There should be regular discussions between the tribunals
and departments concerned.
Information Technology
25 In many tribunals IT is primitive.
The judicious and well managed application of IT would give rise to
the following benefits for tribunals (individually and collectively)
relative to the position today: greater internal administrative efficiency,
effectiveness and throughput; improved quality, productivity and consistency
of service; better public understanding of tribunals; greater accessibility
to tribunals; improved management information about the performance
of tribunals; and superior public confidence and stronger reputation.
The challenge here is to use IT to support the creation of the Tribunals
Service and build on existing successes; to understand the likely obstacles;
and to capitalise on other initiatives that support the introduction
of IT and the Internet.
Devolution
26 It is important to ensure full
consultation with Assembly Ministers in Wales about the recommendations
relating to recruitment, appointments and the Tribunals Service. In
the other devolved jurisdictions only those tribunals are relevant which
exist also in England and Wales. Scottish Ministers have elected to
wait for the report before deciding what, if any, action to take in
relation to tribunals that operate in Scotland. The situation in relation
to the tribunals themselves is exceedingly complicated. Whether the
Tribunals Service is to operate there must be a matter for Scottish
Ministers.
Related bodies
27 Although professional disciplinary
bodies are outside the terms of reference, they would profit by compliance
with the recommendations about procedure, management and training. First
instance regulatory and investigatory bodies may similarly be regarded
as beyond the scope of the Review. But bodies which review the decisions
of regulators should be established as a Regulatory Division. Most Ombudsmen
are also outside the terms of reference. When, however, the Financial
Services and Legal Services Ombudsmen have binding powers, like the
Pensions Ombudsman, they should be subject to the supervision of the
Council on Tribunals.
Individual tribunals
28 No review of tribunals would be
complete without specific reference to each of the principal tribunals.
Since they disposed between them during 1999 of nearly one million cases,
their collective contribution not only to administrative justice but
more broadly to social welfare is enormous. In a Review set to occupy
no more than 10° months an examination in depth is not possible.
But after visiting each of the main tribunals and reading their responses
to the Consultation Paper as well as the views of others, it has seemed
apposite to make some recommendations about them.
Resources
29 The effective implementation of
these recommendations requires urgent funding for the JSB now; and will
require new resources for setting up the Tribunals Service, for the
provision of IT, and for the Council on Tribunals. That is inevitable
if the tribunals are to be effectually modernised. But there is also
considerable scope for savings through economies of scale. For example,
there is under-used accommodation in some tribunals, while others are
paying substantial amounts to rent facilities in hotels. Unsurprisingly
in a complex and fragmented amalgam of tribunals there is considerable
duplication of effort. The Tribunals Service should be funded by the
sponsoring departments in proportion to the number and type of cases
that their decisions generate. Capital expenditure should be offset
by economies of scale. A unified approach to IT will show savings over
a plethora of individual schemes.
A staged package
30 These recommendations do not lend
themselves to cherry-picking, and are not intended to. Together they
constitute a package. But the implementation of the scheme they advocate
should be staged in accordance with a plan. First, the JSB should forthwith
be enabled to go ahead with arrangements for training; the powers of
the Council on Tribunals should be enlarged; and the Tribunals Service
should be created. The nucleus should consist of the tribunals which
are currently sponsored by the Lord Chancellor’s Department together
with the Appeals Service. Thereafter the rest of the tribunals, which
are currently administered by other departments and agencies, should
be integrated into the Tribunals Service as soon as possible. The grouping
of tribunals into Divisions should follow, so as to form the Tribunals
System; and within each Division high priority should be given to reappraisal
of IT.
A new culture
31 In a Tribunals System properly
so-called there should be a new culture, starting with improved recognition
of just how daunting the tribunal experience usually is for first-time
users, as most are. Administrators should strive to improve the speedy
and efficient throughput of cases from dissatisfaction with an initial
adjudication by department or agency to the conclusion of the ultimate
appeal. That should be achieved by skilful listing, by enlightened case
management, by keeping users informed in all their dealings with the
tribunal, by ensuring that standards are met, and by learning lessons
by taking heed of complaints. Speed should not be an end in itself.
It should follow from obedience to the watchwords which should inform
every tribunal: informality, simplicity, efficiency, and proportionality.
But without this new culture, if tribunals were to go on being administered
as they are now, where and how would they find the independence, or
indeed the coherence, the economies of scale, the consistency, the professionalism
or the IT, to which users are entitled?
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