This Special Report was presented to Parliament by the Lord High Chancellor by Commmand of Her Majesty in August 1997.
In this Report, the Council on Tribunals provides guidance to Government Departments and other public authorities responsible for running tribunals. The guidance examines the pre-conditions required for establishing and maintaining the independence and integrity of tribunals. This includes ensuring high quality appointments of chairmen and members, proper training and guidance for those chairmen and members and appropriate administrative support in terms of staffing and accommodation. The guidance in particular examines the structure and organisation of tribunals and their relationship with Departments, and the important contribution that the judicial head can make in promoting a tribunal's independence, not least in ensuring so far as possible that decisions on matters of funding and administration do not put that independence at risk. The Council's conclusion is that the independence and integrity of a tribunal system is best maintained if the judicial head is given a specific role in meeting the pre-conditions that are identified in the Report as being essential to its independence and integrity.
1.1 The 1957 Report of the Franks Committee on "Administrative Tribunals and Enquiries" (Cmnd.218), which led to our establishment, made no recommendations about the ideal system of organisation for tribunals. The Committee simply observed: "Perhaps the most striking feature of tribunals is their variety, not only of function but also of procedure and constitution. It is no doubt right that bodies established to adjudicate on particular classes of case should be specially designed to fulfil their particular functions and should therefore vary widely in character. But the wide variations in procedure and constitution which now exist are much more the result of ad hoc decisions, political circumstance and historical accident than of the application of general and consistent principles" (paragraph 128).
1.2 The Committee went on to recommend that one of our functions should be "to keep under review the constitution and procedure of existing tribunals", and that we should, when established, suggest how the general principles of constitution, organisation and procedure enunciated in the Franks Report might be applied in detail to the various tribunals. Having first decided the application of those principles to all existing tribunals, we should thereafter keep them under review and advise on the constitution, organisation and procedure of any proposed new type of tribunal. That recommendation was given effect to in what is now section 1 of the Tribunals and Inquiries Act 1992, which requires us to keep under review the constitution and working of the tribunals falling within our jurisdiction and to report on such matters from time to time.
1.3 Our earliest views on the constitution and organisation of tribunals did not emerge until our Annual Report for 1968 when we concluded that, in certain cases, there was a need for improved channels of communication between tribunals and the department responsible for them as well as between tribunals and the Council. We said that the different ways in which tribunals were organised had some bearing on this, and noted that satisfactory channels of communication existed in the case of tribunals which had as their head a President with administrative responsibility for the whole country. In 1981, we went on to say: "The Council see considerable advantages in a presidential system, at least for most of those tribunals which have a large case-load, employ a considerable number of panel-members and meet locally in different places throughout the country. This is a topic currently under consideration by the Council and it may be possible to establish some criteria defining the types of tribunal for which the appointment of a national president or senior regional chairman, or both, are most suitable; and to review existing forms of tribunal in the light of those criteria".
1.4 That review led to our formulating certain criteria for the establishment of a presidential system of organisation, or a looser structure of quasi-autonomous regional chairmen. Those criteria, as set out in our Annual Report for 1982/83, have continued to form the basis of our approach to questions relating to the structure and organisation of those tribunals falling within our jurisdiction.
1.5 We retain a unique overview of how the variety of tribunal systems within the United Kingdom are operating and of their relative strengths and weaknesses. Our extensive knowledge is developed from the regular contact which our members have with individual tribunals at a national and local level through our annual programme of visits up and down the country, both to observe the tribunals in action and to attend their conferences and training seminars. It is also derived from our periodic discussions with tribunal heads, and from our contacts and regular dialogue with Departmental officials and with other bodies. We regard it as entirely appropriate to our function, therefore, that we should continue to use our collective experience of the working of tribunal systems to highlight best practice and to offer our views from time-to-time on matters of importance for the benefit of tribunals and Departments generally. As part of that function, it has been our practice to revisit major issues of principle whenever our experience shows that this is necessary in the light of new developments.
1.6 In paragraphs 2.200-2.204 of our Annual Report for 1995/96 we outlined the significant organisational and structural changes that have been taking place since 1983 which caused us to conclude in late 1995 that a new and detailed examination of the fundamental principles relating to the organisation and management of tribunal systems would be timely. As we said then, while the general thrust of those changes has been towards improved performance in the day-to-day operation of many of the tribunal systems we supervise, it is apparent that they have also led to a fundamental shift in the relationship which Departments have with the tribunal systems they sponsor, particularly on matters concerned with administration and funding.
1.7 We have been generally supportive of those Departmental initiatives designed to bring about structural and organisational changes which are capable of delivering benefits in terms of value for money for the taxpayer and for tribunal users. We regard these as desirable developments so long as their effect is not to undermine the independence and integrity of the tribunal systems themselves or to interfere in the exercise of the judicial function. However, there are signs that Departments are not adhering to these principles, and paragraphs 2.2-2.6 of our Annual Report for 1995/96 draw attention to examples of where the overall drive by Departments to reduce costs and to secure additional savings is being achieved at the expense of increased hearing delays, inadequate administration, and an absence of effective support to the tribunals.
1.8 We said last year that the aim of our review would be to examine the place of the tribunal President in the context of those changes and to reach some conclusions about the nature and value of the contribution which the President could be expected to make to the effective working of the tribunal system and to the proper exercise of the tribunal's judicial functions. As the review has developed, however, it has become clear to us that the issues which we were seeking to address are not confined to the presidential model, whatever form that might take. Concepts relating to the independence and integrity of tribunal systems have far wider application and embrace the variety of those systems falling within our jurisdiction. To that extent, our conclusions set out below depart from the more narrow principles last enunciated in our Annual Report for 1982/83 to which we refer at paragraph 1.4 above.
1.9 Because of the importance we attach to this issue, we have formulated our views in a way which we hope will provide Departments with a framework to which we would expect them to have regard whenever consideration is given to the setting up of new adjudicative structures or to a review of existing ones.
2.1 Our conclusions begin with a statement of general principles which are intended to underline what we believe the fundamental purpose of tribunals to be.
2.2 It is clear to us that, since tribunals are established to offer a form of redress, mostly in disputes between the citizen and the State, the principal hallmark of any tribunal is that it must be independent. Equally importantly, it must be perceived as such. That means that the tribunal should be enabled to reach decisions according to law without pressure either from the body or person whose decision is being appealed, or from anyone else.
2.3 For tribunal systems to achieve and maintain that state of independence and integrity, they must be able to demonstrate that they have in place:
2.4 We believe that significant consequences flow from this, and that it is incumbent upon Departments to ensure that the responsibility for ensuring that these pre-conditions for independence are in place is properly assigned and understood. In this connection, we have examined in some considerable detail the relationship between Government Departments and tribunal systems on matters of funding and administration, and on matters concerned with the effective and efficient performance of the tribunal's judicial functions.
Our conclusion, on which we expand below, is that the independence and integrity of a tribunal system is best served if someone from the judicial side of the tribunal is given a specific role in meeting some or all of those pre-conditions.
2.5 Tribunals are classified as a form of Non-Departmental Public Body (NDPB). They are described in the guidance given to Departments by the Cabinet Office as "those bodies whose functions, like those of courts of law, are essentially judicial. Independently of the Executive, they decide the rights and obligations of private citizens towards each other and towards a government department or public authority". Although the guidance recognises that tribunals exercise their functions entirely independently, it makes clear that the relevant sponsoring departments will normally be responsible for providing them with administrative support and funding. Administrative support normally means the provision of hearing and other accommodation, of hearing clerks and clerical staff, and of all support services, as well as a budget to assist the tribunal to carry out its judicial tasks. We would add that administrative support to tribunals must also mean "effective support" in terms of the standard of support services, the quality and availability of hearing accommodation which is not connected to one or other of the parties, the numbers and training of support staff, the provision of properly trained hearing clerks, and the level of performance standards and customer services, including adequate and effective guidance literature for those using the tribunal.
2.6 The amount of monies granted to a tribunal in any given year will first be settled in discussion with the Department to whom the tribunal is required to submit its bid. The tribunal's bid may not survive in its entirety and may well be subject to adjustment when the expenditure for the Department as a whole has been Voted by Parliament. The final decision will be for the Department to make in the light of wider political and financial considerations, and will be subject to other competing priorities within the Department concerned. It is then necessary for the tribunal to operate within any constraints which the budget may impose.
2.7 The amount finally allocated to a tribunal system, and the way it can be used, is subject to strict controls and rules of government accounting. The Treasury is statutorily required to appoint an Accounting Officer for every Vote, and it is a long-standing practice that the Permanent Secretary of the Department should be appointed as its principal Accounting Officer. He has responsibility for the overall organisation, management and staffing of the Department and for Departmental procedures in financial and other matters, and must ensure, among other things, that there is a high degree of financial management and propriety in all areas of the Department's business. Although he may assign his responsibilities over a certain area of the Department's business to one or more properly skilled and experienced Departmental Accounting Officers, the Permanent Secretary remains ultimately accountable for these matters as the principal Accounting Officer.
2.8 The Department's compliance with these requirements in the use of public funds, including those allocated to tribunals, is subject to examination by the Comptroller and Auditor General, and the Accounting Officer may expect to be called upon to appear before the Public Accounts Committee to answer matters which arise out of the Comptroller's examination.
2.9 Accordingly, responsibility for the administrative support to the tribunal is normally in the hands of a senior Tribunal Administrator/Chief Executive (usually a civil servant) who, as the tribunal budget holder, is responsible to a senior official within the Department, and ultimately to the Permanent Secretary as principal Accounting Officer, for the proper use of those funds and other resources. This approach, which we generally endorse, has tended nevertheless to promote the view that there is a necessary separation of the judicial functions of the tribunal on the one hand and the financial and administrative responsibilities of the Department on the other. This has led some Departments in turn to conclude that the process by which the tribunal bids for funds, as well as decisions taken during the course of the year about how the tribunal budget should be applied, are matters for the Tribunal Administrator and the Department alone and not something in which the tribunals themselves have a proper part to play. Failure on the part of administrators to recognise the need to discuss matters of funding and resource management with those responsible for ensuring that the judicial tasks of the tribunal are carried out effectively can have serious consequences for the tribunal.
2.10 While we acknowledge that it is not necessary for someone from the judicial side of the tribunal to be seen to take the lead on matters of funding and resource management, we are firmly of the view that the judicial side have an important role to play in such matters. It is entirely appropriate that responsibility for financial and budgeting matters, and accountability for the use of public funds, should be placed in the hands of a senior Tribunal Administrator skilled in carrying out such tasks; indeed, few if any judicial members have the experience or qualities needed to discharge that role. But the decisions made when the bid for tribunal funds is being prepared and settled with the Department, and the financial and administrative decisions taken during the course of the year on how best to apply the funds allocated to the tribunal and to utilise other resources, each bear directly on the efficient and effective working of the tribunal itself, and thus on its independence and integrity.
2.11 [omitted from report]
2.12 For that reason, we believe that someone from the judicial side of the tribunal must be given a central and effective role in such matters, and enabled to contribute his or her views at the highest levels of the Department. In particular, whenever any new restrictions on resources are being contemplated, his views should be sought on the effect this would be likely to have on the quality of justice, and the Department should ensure that full account is taken of those views when final decisions are made. He should also be given the opportunity, in partnership with the tribunal administrator, to contribute formally to the tribunal's overall strategy and to decisions about the need for additional funds to cover it.
2.13 Given the importance of this function, we believe that it can only be carried out effectively by a judicial member from within the tribunal system appointed for that purpose as the judicial head. Moreover, we believe that the role of the judicial head in relation to such matters, as well as that of the tribunal administrator and the Department, should be clearly defined and formally recognised, perhaps in a memorandum of understanding between the Department and the person appointed to carry out that role. We say more about his appointment and status below.
2.14 We now turn to matters of judicial management and where responsibility for that should lie. In essence, we regard the responsibility as twofold. First, there must be a concern for the performance of the tribunals themselves, by ensuring that the tribunal chairmen and members carry out their judicial tasks effectively, but without in any way interfering with the exercise of their judicial discretion in individual cases. Secondly, there must be concern for the efficient use of the judicial resources at the tribunal's disposal, through the setting of appropriate conditions and standards and monitoring of individual performance. If those responsibilities are to be discharged properly the judicial head must, in our view, be given a specific role to play in a number of areas.
2.15 In terms of the effective use of judicial resources, his interest will be;
2.16 In terms of the efficient use of tribunal resources, his interest will be;
2.17 More generally, there are a range of policy decisions made by Ministers on the advice of officials in respect of which consultation with the judicial head must be considered desirable if not essential. They include decisions concerned with changes to the jurisdiction or procedures of the tribunal, and changes to the composition or make-up of the tribunal (for example, chairmen sitting alone in certain cases, the use of two rather than three person tribunals, and the use of experts, etc), as well as decisions concerned with changes to the organisation or structure of the tribunal. Decisions made in these areas again closely affect the tribunal's ability to carry out its judicial tasks effectively, and the Department should ensure that the judicial head is properly consulted on such matters, and that his views are fully taken into account when final decisions are being made.
2.18 It has long been our practice to encourage tribunal systems to produce an Annual Report on their activities as a means of enhancing the tribunal's independence from the Executive. Many are very informative and provide a range of factual data about tribunal membership, and about workloads and disposal rates against agreed targets, as well as other administrative details and initiatives. However, independence is likely to be best served if the Annual Report is also used as a vehicle for the judicial head to speak about the judicial activities of the tribunal concerned, and to bring to public attention any concerns he may have about its procedures and working, including, if necessary, matters of administration and funding.
2.19 It will be apparent from the foregoing that we regard it as essential that there should be one person on the judicial side of the tribunal appointed to carry out these important tasks. There are a range of tribunals falling within our jurisdiction, both large and small, which have no central direction of the kind we are advocating, and our real concern is that it is not clear whether, or how far, the principles of independence are being observed or achieved by these systems.
2.20 When we last reported on this topic in 1983, we acknowledged that where the size and workload of a tribunal system did not warrant the establishment of a presidential system of organisation, a looser structure of quasi-autonomous regional chairmen without a president would be acceptable. We added that, in such circumstances, we would expect the regional chairmen to meet reasonably frequently to plan and co-ordinate their work in relation to those matters which would otherwise be the responsibility of the president. We suggested that one of the regional chairmen could act as the focal point and take responsibility for organising the regional chairmen's activities. There are currently a number of tribunals falling within our jurisdiction which are structured in this way, and which operate on that basis to a greater or lesser extent, principal among which are the Mental Health Review Tribunals, the Rent Assessment Panels and the Valuation Tribunals.
2.21 Our observations of these tribunal systems over a number of years, suggest that the main difficulty for them and for similar systems is that, despite their best endeavours, there is no one person in a position to give a lead from the centre, by driving the system along, co-ordinating procedures and practice across the country, ensuring that policies and standards are adopted and enforced, harmonising practices and procedure and, generally, managing the system. We have noted how the absence of this central direction can lead to different practices and procedures being operated by different regions, resulting in confusion and uncertainty among tribunal users operating across regional boundaries; to regions operating in almost total isolation from each other with little, if any, opportunity for contact between the judicial members at a national level; to decisions on matters of tribunal performance and training being left to individual regions, leading to an absence of, or differences in, approach on such matters; and to a failure to identify and adopt best practice across the regions.
2.22 The absence of a judicial head has also meant that there is no one in a position to speak with one voice in dealings with the sponsoring Department and other bodies on a range of matters with which a tribunal should normally be involved. That not only weakens the tribunal's ability to ensure that its independence and integrity is not put at risk by Executive action, it also creates immense difficulties for Departments and others when the tribunal needs to be consulted on matters such as policy and administration.
2.23 We do not mention these matters as a criticism of the role played by individual Regional Chairmen in such tribunal systems. To the contrary, we have always been greatly impressed by their commitment and by the way that they carry out their judicial and administrative role at a regional level, as well as by the efforts of some, such as the Mental Health Review Tribunals, to work together as a collegiate group to bring about a measure of consistency in approach between the regions. Other tribunal systems, such as the Valuation Tribunals, have sought to improve matters by establishing a voluntary "National Association" of representative members, with an elected National President, able to provide a greater measure of central direction, by initiating and developing a training programme for their chairmen and members, and encouraging better communication between members through annual conferences and seminars. We have long supported such efforts which we believe demonstrate the desire of many tribunal systems to move towards the principles to which we adhere. But there is a limit to what can be achieved by voluntary means, and our own experience of the working of these tribunal systems demonstrates to us that the absence of a judicial head appointed specifically to carry out the functions we have described significantly restricts their ability to achieve the desired level of independence and effectiveness.
2.24 In terms of his appointment and status, the judicial head need not necessarily be called a "president", but he should stand apart from, if not above, his judicial colleagues by being given the functions we have described above, and his title should adequately reflect the role he is given. His appointment should be made by the Lord Chancellor in respect of tribunals in England and Wales, and his office and main functions should be provided for by statute. It is also essential in our view that his terms of appointment should make clear the extent of his powers and duties in relation to the above matters. They should also be formally recognised in a memorandum of understanding between the person appointed and the Department.
2.25 His eventual status and title will be largely governed by the size, organisation and structure of the tribunal concerned. But we regard it as important to the effective performance of his functions that the person appointed is of sufficient weight and standing to reflect the level of responsibility which he will be required to discharge towards both his judicial colleagues and the Department, as well as others with whom he will have formal dealings. We also regard it as essential that the person appointed is able to demonstrate that he or she has the necessary qualities to undertake the senior judicial role, amongst which we would include an aptitude for judicial management and administration, and the ability to "manage" judicial colleagues.
2.26 We do not wish to suggest that the principles we have outlined above are necessarily capable of application to all tribunals. For example, the appointment of a judicial head undertaking the full range of functions we have referred to would be wholly inappropriate for those tribunals which seldom meet. Locally-based tribunal systems, such as the Education Appeal Committees which are funded and administered by the local authorities, and the General Commissioners of Income Tax, are also not best suited to the approach we are advocating. As currently constituted, the only means they have of making progress at the moment is by forming, as the General Commissioners of Income Tax have already done, a voluntary "national association" able to carry forward some of the responsibilities we have referred to above. This narrow range of tribunal systems we would regard as the exception to the rule.
But we believe it essential that all other established tribunal systems should aspire to such principles, even though some may find them more difficult to achieve than others. Moreover, we will look to Departments to ensure that full account is taken of them whenever new adjudicative systems are being contemplated and when existing systems are being reviewed.