Tribunals

The adjudicative fora in which the vast majority of disputes between the citizen and the state get resolved are known collectively as tribunals. Some, such as the General Commissioners of Income Tax, trace their history back to the late eighteenth century. But the vast majority are the creation of the twentieth century, reflecting the increasing involvement of the state in the lives of its citizens.

For the first twenty to thirty years of that century, there was considerable concern about the use of tribunals as a mechanism for the resolution of disputes. It was argued that only courts had the constitutional authority to perform this function. It was, perhaps, one of the advantages of the lack of a written constitution that, despite this claim, there was no written constitutional principle that required all dispute resolution bodies to have the status of 'court'. In fact, the development of tribunals was a pragmatic response to the problems caused for the court system when, at the end of the nineteenth century, jurisdiction to deal with disputes arising under the Workmen's Compensation Acts was given to the county court. This had the result of completely drowning those courts in work, thereby preventing them from dealing efficiently with other business.

Criticism of the use of bodies other than the courts for resolving disputes led to fierce criticism. It was in the 50-s of the 20th century, by which time a lot of tribunal systems were in existence, that, tribunals were accepted as a part of the adjudicative structure. Since that time, there has been no serious discussion about the need for tribunals. Indeed, their number has continued to grow. The position of tribunals is even more secure following the enactment of the Human Rights Act 1998, since Article 6 of the European Convention on Human Rights requires the existence of courts or tribunals to determine a person's civil rights.

There are currently at least eighty different tribunal systems in existence. They come in a bewildering variety of forms. Tribunals currently deal with around 20, 000 cases a year.

Structure

Some are 'two-tiered' tribunal systems. For example in social security, appeals go first to the Appeals Service, which may consist of three, two or one members depending on the type of case. From there a case may go, with leave and on a point of law only, to the Social Security Commissioners. The Commissioners usually sit on their own, but for the occasional difficult case they may sit in a tribunal of three. There is a similar structure with employment tribunals, with a second tier appeal to the Employment Appeal Tribunal consisting of three people: a judge and two lay assessors. In immigration, cases are heard at the first tier by an immigration adjudica­tor sitting on his/her own. There may then be an appeal to the Immigration Appeal Tribunal which usually comprises three people (though this practice is changing). In all these cases, there is the possibility of further challenge on a point of law in the courts.

Other tribunal systems are 'one-tier': examples include the Mental Health Review Tribunal, the Valuation Tribunal and the Rent Assessment Committee. In other words, there is only one level of appeal or review within the statutory framework. Any further challenge has to be direct to the courts.

Although the label 'tribunal' may imply a body of three people some are made up of fewer than three people; one-person tribunals are becoming increasingly common as government departments seek to cut the costs of administrative justice. Other tribunals may have more than three persons involved, particularly tribunals which deal with matters relating to the National Health Service.

Qualifications

Most tribunal systems these days have legally qualified chairmen. But this is not universal—for example General Commissioners for Income Tax who determine tax cases and Valuation Tribunals, which determine property values, operate with only lay persons on the tribunal. In such cases it is usual for the clerk to the tribunal to be legally qualified (rather like the Justices' Clerks who assist benches of lay magistrates). In other tribunal systems, there is more professional expertise sitting around the table. Most commonly there is legal expertise; but, where relevant, there may be a valuer or an accountant or a doctor. In cases where the tribunals operate with professionally qualified adjudicators, whether lawyers or other professionals, the clerk will perform more of an administrative or clerical role, not giving advice to the tribunal.

Process

Tribunals operate under a bewildering variety of procedures. Some take evidence only on oath or after affirmation, given by the witness or party to the proceedings; others do not use the oath. Some sit in courtrooms—or rooms set out like courtrooms. Others are established in much more informal contexts, such as school rooms or hotel rooms. Some large tribunal systems manage their own tribunal accommodation; others have to rent or borrow space as occasion demands. (It is remarkable—given the extent of the administrative justice system, and the numbers of tribunals it com­prises—that towns do not have 'administrative justice centres' to match the criminal court centres and civil court centres that are commonly found.)

Many tribunal systems make extensive efforts to deal with appellants who—as the result of a lack of availability of legal aid—either have to represent themselves or have to rely on lay advocates. The social security appeal system, for example, prides itself on its 'enabling role'. Unlike the adversarial approach of the courts, where the judges tend to take a back seat while the argument, for and against, is presented by advocates for both sides, members of tribunals take a more interventionist role, seeking to draw relevant information from the parties by appropriate questioning. It is in this variety of forensic methods that much of the potential innovation of the tribunal system is to be found, and from which the courts—if they knew what went on in the best-run tribunals—might have much to learn.

It is sometimes suggested that tribunals offer 'informal' as opposed to 'formal' justice. This gives the wrong impression, certainly if 'informal' implies a lack of organization or discipline. The primary advantage of a tribunal as opposed to a court is that there is a lack of rigidity of process, though the person running the tribunal must have a very clear grasp of what the issue to be decided is. If this is clear, the precise order in which people speak will not matter, so long as everyone has their say. The relevant information can thereby be obtained which should allow the tribunal to come to a fair and proper decision.

Management

Management of tribunals also varies enormously. Many systems have presidents who operate at national level, often through a regional structure—for example social security, employment and the Special Educational Needs and Disability Tribunal. These tribunal systems tend to be well organized, with comprehensive programmes of training for members and chairmen, monitoring and evaluation of performance and the use of other modern management techniques.

In other cases, such as Education Appeal Committees, the tribunals are organized at the local authority level, with very little central direction. Others operate on a regional basis; they include mental health, rent assessment and valuation. These tri­bunal systems tend to be less advanced in the development of training programmes and the use of other management techniques, and seem less well resourced for the tasks they are required to perform.

A final respect in which tribunal systems differ relates to the ways in which important decisions get reported. Many of the two-tier systems have the means of publishing significant decisions from the upper tier. Some of these reports are published com­mercially—as in the case of employment cases; other are published regularly by the government department in question—such as immigration reports, or tax cases. Others appear on a more hand-to-mouth basis, such as the reported decisions of the Social Security Commissioners. Other tribunal systems have no formal reporting mechanisms.

Questions:

1. Why was there considerable concern about the use of tribunals as a mechanism for the resolution of disputes?

2. Describe the structure of the tribunal.

3. What are the personnel of the tribunal and their qualifications?

4. Is the process of a tribunal hearing unified?

5. What is considered the primary advantage of a tribunal as opposed to a court?

6. Describe the system of the tribunals’ management and reporting their decisions.