March 2001

 



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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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