Should Tribunals be Abolished, Reformed or are they a Desirable Means of Resolving Disputes?

 The decisions made in tribunals are supposedly free from the ties of political influence. Parliament has afforded tribunals with exclusive decision-making powers and with the exception of cases where appeal lies only to a minister, any decisions made as a result of any external influence should theoretically be deemed void. There is however, considerable scepticism regarding the use of particular tribunals because it is believed that the tribunal form of administration leads only to a separation from parliamentary accountability and lack of legitimacy rather than to the achievement of decision-making independence. The establishment of immigration tribunals in 1969 is a good example of where such controversy was inspired. The tribunals were formed against a common law background which had not succeeded in affording any substantive or procedural rights to the individual aliens. The discretion regarding immigration decisions was consequently transferred from the Home Secretary to the immigration appeal tribunal. Lord Hailsham LC was subsequently encouraged by this transfer to offer his rather controversial opinion that ‘the proper authority to decide questions of policy which are embodied in the rather obscure phrase “discretion” which the tribunal can impose upon the Secretary of State, and therefore upon Parliament, without Parliament retaining control over it.’

 I believe however that such a system of independent adjudication is required in such cases as the use of a tribunal takes the position of the individual into account rather than thinking solely of the power of government bureaucracy. Tribunals are particularly informal which can encourage the dispensation of justice in certain cases where a person find formality of the judicial proceedings slightly overwhelming and may be reduced to a form of verbal incoherence when required to make a statement or complaint. Immigration is a particularly sensitive area where the individual is in a vulnerable position with regard to their lack of substantive and procedural rights. In certain situations it may be appropriate to refuse entry to the individual but an immigrant may not be able to recognise the reasons behind such decisions. It is clear that tribunals can offer a comforting format to protect the individual in these sensitive areas of law. Many people are appeased in a sense as they are given an opportunity to play a substantial role in the proceedings because of the informal open nature of tribunals. The belief imposed by parliament that the tribunal system is an entirely separate decision-making body may indeed be a mask. Tribunals are governed by statute which in a sense automatically limits their decision-making powers. Tribunals are able to manage and administer a portion of funds and resources made available by Parliament and so the hands of the tribunal system will always be tied by Parliament. There are a finite number of resources available and so a decision favouring one individual could potentially affect the outcome for the next individual. The appeasing of the people standing before a tribunal could again be rather false as there is a lack of representation and the people may feel as if their trials have been satisfactorily dealt with when in reality the decision made is merely a reflection of parliamentary instruction. I am therefore of the rather controversial opinion that the conception of tribunals as representing independent decision-making is rather farcical. The tribunals only lose their legitimacy through lack of legal representation and the intimated movement away from parliamentary control.

Much controversy arises from the lack of legal aid to cover all tribunals, thus resulting in a lack of legal representation. Although I am of the opinion that tribunals are important in our legal system and should not be abolished, I am not of the rather blind opinion that there is no need for reform. The question of whether legal aid should be extended to cover representation by a solicitor or, where necessary, counsel in tribunal matters, is frequently discussed. Many people are of the opinion that the extension of legal aid would lead to the formalisation of the current system, as legal representation would become more common in tribunals, however I am not sure this is sufficient justification for a refusal of legal aid extension. A further objection to legal aid is that this would lengthen the proceedings which are valued because of their rapidity. Evidence shows that solicitors conduct the preliminary stages of proceedings before a tribunal as they would do before a court. They also tend to seek further particulars while taking other interlocutory steps which are not ideal for the type of work dealt with in tribunals. Members of the legal profession can also be inexpert in matters arising in certain tribunals. The misconceptions regarding rapidity of tribunals must be relayed to the public in order for the benefits of legal representation to be comprehended.

Legal Aid has been extended, via the Legal Aid Act 1988, ss.14 (1) and 15 (1), 2nd schedule, to cover four tribunals only, the Lands Tribunal, the Employment Tribunal, the Mental Health Review Tribunal and the Common Commissioners. However, I am of the opinion that a major reform in the tribunal system would be to extend legal aid to all statutory tribunals at present within the supervision of the Council on Tribunals in which representation is permitted. Most people appearing before a tribunal are disadvantaged by their lack of skill and confidence to deal successfully with their case, often finding it difficult to deal with complex issues which arise. Legal representation is clearly required in these particular cases and as solicitors become accustomed with the type of work required for a tribunal, they will undoubtedly cease to take steps which are rarely suited to the particular cases dealt with by tribunals.

The report entitled “The Effectiveness of Representation” by Hazel and Yvette Genn should certainly be addressed when looking at the importance of properly funded representation in tribunals. The emerging evidence from the report suggests that the success of trial outcomes is significantly affected by the quality of representation. Certain tribunals are of a specific nature where the law can be rather complex and skilled representation is necessary to ensure a balanced trial with a more promising chance of success. Advice agencies are also held within the report to play an important role in the tribunal system and more funding should be distributed to these bodies. The pre-hearing advice was found to be of equal importance to representation, and funding is therefore required in this area.  Advice and representation, and improved training and monitoring of tribunals would undoubtedly increase the rate at which cases are brought before tribunals. With extra funding to encourage representation, tribunals could potentially function as effective review mechanisms. However, this may not actually be the underlying purpose of the tribunal system. The purpose for the current existence of tribunals may indeed be to mask unpopular social regulation and issues with a cloak of legitimacy. However, if the stated goal of tribunals to keep administrative decision-making in order, rather than to provide a forum in which disappointed applicants can voice their complaints without obtaining the result sought, then the defects of such a system must be addressed.

The report made by a team under the leadership of Sir Andrew Leggatt in May  2000 suggested reforms for the tribunal system. The report suggested that an executive agency, referred to as the Tribunals Service should be created with the goal of administratively supporting the abundance of tribunals. The aim would be to divide the tribunals into nine groups, all of which adhering to a presidential format with the High Court judge in position of President. The report clearly argues that the benefits of such a unified system would be efficiency as there would be published targets to be met. The Tribunals Service would require feedback from users regarding their experience of the system which would in turn be fed back to the various departments to improve quality and rapidity of decision-making. The Lord Chancellor would be responsible for the appointments and the training of members in order to direct tribunal proceedings to the advantage of the users. Monitoring of proceedings and members would be crucial to the success of such a scheme.

Tribunals play an important role within legal spheres as expert knowledge can be accessed easily in specialist areas and there are certain tribunals which exist in areas where the use of a court would not be appropriate. Certain tribunals, for example, operate as alternatives to departmental or ministerial decision-making rather than court substitutes. Evidence has also shown that although tribunals are not as rapid as they are famed for, they are certainly much quicker than court hearings. Tribunals do therefore serve a necessary purpose and are effective in dispute resolution in certain respects. However the aspects of flexibility they are famed for must be questioned as they are all still bound by the precedents set by decisions of ordinary courts, statute, and perhaps even the instruction of parliament. The need for reform cannot be ignored and the ideal aim would be to strike a balance between the need for procedural simplicity and legal precision, in order to strive for substantive justice. The extension of representations as indicated by the Genn report would be the most appropriate step towards legal precision. The reforms within the 2000 report, when activated would act as a simultaneous step towards procedural simplicity via the amalgamation of tribunals and legal precision via the consistent monitoring of all aspects of the tribunal system.