There are currently at least eighty different tribunal systems in existence, which come in a bewildering variety of forms. For such a diverse range of quasi-judicial bodies, most legal commentators generally draw a distinction between administrative tribunals, employment tribunals and domestic tribunals.
Administrative tribunals were established by statute in response to a perceived need
to have a review process that is quite separate from and independent of government. There are nearly seventy of these tribunals whose function it is to deal quickly and cheaply with grievances against government department and other agencies of the state. For the most part, the procedure in these administrative tribunals is far less formal than in the ordinary courts, for which reason individuals were originally expected to do without legal representation, and may still choose to do so. If an administrative tribunal makes an error of law, the statute that created it may provide for a specific right of appeal to the High Court, which may entertain a claim for judicial review if this is advantageous to the complainant. Though one of the main purposes of the tribunal system is to prevent the ordinary courts from being overburdened by cases, a tribunal is still subject to judicial review on the basis of a breach of natural justice, or where it acts in an ultra vires manner, or where it goes wrong in relation to the application of the law when deciding cases. Where a judge is satisfied with the substance of a claim he can make a quashing order which nullifies the earlier decision; a mandatory order will require a tribunal to rehear a case; a prohibiting order can also be made by the Administrative Court to prevent a tribunal from exceeding its jurisdiction, and it can also be used to prevent a tribunal from ignoring the principles of natural justice when hearing a case.
Employment tribunals were originally established as industrial tribunals with a somewhat limited role by the Industrial Training Act 1964, since when their jurisdiction has extended considerably, notably under the employment legislation of the 1960s and 70s. Their composition, jurisdiction and procedure are now regulated by the Employment Relations Act 1999. Employment tribunals now have the power to determine over fifty different types of complaint arising from the employment relationship. They are supported by the Employment Tribunals Service, which is an executive agency of the Department of Trade and Industry, and operates from 34 permanent offices across Britain to accommodate the needs of employers and employees. Appeals from the decisions of employment tribunals go straight to the Employment Appeal Tribunal (EAT) presided over by a High Court judge, which was established by the Employment Protection Act 1975, but is now governed by the Industrial Tribunals Act 1999. Appeals are restricted to points of law, as was confirmed by the Court of Appeal (CA) in British Telecommunications v Sheridan (1990). Unless the tribunal decision was made by the chairperson sitting alone, the presiding judge in the EAT will sit with two laypersons who can outvote him in deciding the appeal. In the Post Office v Lewis (1997), the CA made it clear that where the decision of an employment tribunal was neither perverse nor affected by an error of law, it was not permissible for the EAT to interfere on the basis that the tribunal had failed to refer in its decision to the main part of the applicants defence. A further appeal on a point of law from the decision of the EAT to the CA is possible with the permission of that court, and occasionally to the House of Lords also.
Domestic tribunals are generally those that are not classed as administrative tribunals or employment tribunals. Some domestic tribunals are created by statute and others are not, and relate to matters from disciplinary and grievances committees at the workplace to the disciplinary committees established by organisations such as the Law Society, Bar Council and Chartered Association of Certified Accountants. Universities and Trade Unions too have disciplinary bodies that decide whether a member should be disciplined if an allegation of an infringement of the rules is established.
Since the majority of domestic tribunals are not presided over by a judge, or besides matters involving the legal profession, even a legally qualified person, it is essential that the proceedings are conducted observing a substantial degree of procedural fairness. Two basic principles of natural justice are applied: that the person making the decision should be independent and unbiased, so as ‘no person should be a judge in his own case’; and also that both sides must be given a fair hearing. In addition the tribunal should provide reasons for its final decision at the end of proceedings to demonstrate that it is fairly and properly made. The same high standards obtaining in an ordinary court are not expected of a tribunal, but the proceedings must be conducted as fairly as possible and a decision can be challenged in the courts if it is blatantly unfair. There is an automatic right of appeal to the Judicial Committee of the Privy Council from the decisions of those tribunals dealing with complaints against doctors, dentists and opticians, and decisions may be reviewed by the High Court where an injustice has been done. In Lee v Showmen’s Guild (1952), the claimant successfully challenged the decision of the Guild’s committee to withdraw his membership in the High Court. In the subsequent appeal to the CA, it was decided that the courts had jurisdiction to examine any decision of the committee involving a question of law, and this would extend to the interpretation of the committee’s rules. Furthermore, in Bonsor v Musicians’ Union (1955), on appeal to the HL, it was held by majority that the union could be liable in damages for breach of contract with one of its members, as not only may courts review the decision-making process to ensure that a constitutional document has been applied properly, they may also award damages to compensate individuals members who suffer loss as a result of officials abusing their powers.
In light of the many tribunals in existence, numerous issues have been identified which make tribunals more advantageous than courts. These include: speed and accessibility, as the arm of tribunals is to provide individuals with a readily accessible forum in which to air their grievances, and gaining access to tribunals is certainly not as difficult as getting a case to the ordinary courts. Also as cases are heard fairly quickly and are able to specify the exact date and time of the hearing, delay is kept to a minimum for the parties; cost, as tribunals do not usually charge fees and each party is required to pay their own costs, rather than the loser having to pay all the expenses. Costs are further reduced as the simpler procedures of tribunals mean that legal representation is unnecessary, but that is not always the case; informality, as attempts are made to ensure tribunals are less intimidating than in a court environment, and the strict rules relating to evidence, pleading and procedure which apply in courts are not binding on tribunal proceedings. This is particularly beneficial where individuals are representing themselves; flexibility, as although they obviously aim to apply fairly consistent principles, tribunals do not operate strict rules of precedent, so are able to respond more flexibly than courts; expertise, as tribunals members already have expertise in the relevant subject area, and through sitting on tribunals are able to build up a depth of knowledge of that area that judges cannot hope to match; and privacy, as tribunals may in some circumstances meet in private so that the individual is not obliged to have their case broadcast to the general public.
However, though tribunals are cheap, quick, flexible and informal, their operation should not be viewed with complacency, as in actual fact they may represent potential weaknesses in the tribunal system. These so called advantages could be seen as representing an attack on general legal standards, and the tribunal system could be portrayed as providing a second-rate system of justice for those who cannot afford access to ‘real law’ in the court system. Some of these weaknesses relate to: appeal procedures, as there is a lack of coherence and uniformity in relation to appeals from tribunals, and rights of appeal from decisions made and the route of such appeals depend on the provision of the statute under which a particular tribunal operates. Subsequent to the Franks Committee Report most tribunals, though not all, are required to provide reasons behind their decisions under s10 of the Tribunals and Inquiries Act 1992, therefore where a tribunal has erred in its application of the law, a claimant can apply to the HC for judicial review to have the decision set aside for error of law on the face of the record; publicity, as a lack of openness may be a distinct disadvantage as cases involving general public importance and citizens’ rights are not given the publicity and consideration that they may merit; provision of public funding, though tribunals were designed to do away with legal representation, as a consequence of the Franks recommendations, the fact that chairpersons have to be legally qualified has led to an increase in the formality of tribunal proceedings. Research by Genn and Genn (1989) found that the average person is likely to be very much out of their depth, as much of the law concerned was complex, and the adjudicative process of tribunals was highly technical, and individuals who were represented had a better chance of winning particularly when facing an opponent with access to the very best representation. However, the replacement of public funding by the Community Legal Service Fund under the Access to Justice Act 1999, and the establishment of Community Legal Service Partnerships may well improve the availability of quality advice for those with disputes to be heard by tribunals; problems with controls, due to the great diversity of tribunals there is great difficulty establishing mechanisms of supervision that are appropriate to them all. The Council on Tribunals is considered to be the watchdog with no teeth, as it can advise the government of problems but has no real power to ensure they are dealt with. Also the controlling effect of judicial review is limited by the fact that it cannot consider the merits of decisions, and where wide discretionary powers are given to a minister, government department or local authority, the court will find it difficult to prove that decisions made are outside those powers.
Thus, in May 2000, Sir Andrew Leggatt was appointed by the Lord Chancellor to undertake a review of the tribunal system as a whole. In his task to rationalise and modernise the tribunals structure he made a number of proposals including: making the 70 tribunals into one tribunals system, that combining the administration of the different tribunals, grouped by subject matter into Divisions, would achieve efficiency, coherence and dependence; improving the training of chairpersons and members in the interpersonal skills particularly required by tribunals; ensuring unrepresented users could participate effectively and without apprehension in tribunal proceedings, that tribunals should do all they can to render themselves user-friendly, understandable and unthreatening and give the parties confidence in their ability to participate regardless of their skills or knowledge; providing a coherent appeal system, as the current arrangement has developed haphazardly with a confusing and illogical variety of routes for appeal. The Review suggests that there should be a right of appeal on a point of law, by permission on the generic ground that the decision was unlawful: from the first-tier tribunals in each Division to its corresponding appellate tribunal; from appellate tribunals to the CA; and where there is no corresponding appellate tribunal; to any such court as may be prescribed by statute; or in default to any such appellate tribunal as may be appointed by the Senior President; reconsidering the position of lay members, the President of the Division should be given discretion as to whether lay members should sit in a case, as there is no justification for lay members to sit unless they have a particular function to fulfil; that the Council on Tribunals should be given extended powers to monitor the progress in the implementation of the tribunal system, and check that the practices and procedures of the government departments were compliant with the European Convention on Human Rights.
In conclusion therefore, it can be seen that tribunals are much more than merely a cheaper alternative to the courts of law. In his Review, Sir Andrew Leggatt found that nearly one million cases a year are heard by the 70 different tribunal systems in England and Wales. Though every civil dispute cannot be heard by tribunals, certain family and criminal matters for example, such a high figure is indicative of the increasingly significant role tribunals have to play in the English administrative system. Hence every attempt must de made to further develop tribunals as a more effective and efficient forum for the resolution of civil disputes. Subsequent to the Reviews recommendations, the Lord Chancellor’s office revealed the government’s intention to institute a new unified Tribunals Service. Thus by combining the administration, it will deliver a more efficient and effective service to the users of tribunals. Accountable to the Lord Chancellor, the service will bring together the 10 largest from across Central Government, with smaller tribunals joining as appropriate. The 10 tribunals concerned are: the Appeal Service; the Immigration Appellate Authority; the Employment Tribunals Services; the Criminal Injuries Compensation Appeals Panel; the Mental Health Review Tribunal; the Office for Social Security and Child Support Commissioners; the Tax Tribunals; and the Special Education Needs and Disability Tribunal.
BIBLIOGRAPHY
List of Books
- Elliot, Catherine and Quinn Frances
English Legal System
Fourth Edition, 2002
Pearson Education
- Ingman, Terence
The English Legal Process
Ninth Edition, 2002
Oxford University Press
- Partington, Michael
An Introduction to the English Legal System
Second Edition, 2003
Cavendish Publishing
- Slapper, Gary and Kelly, David
The English Legal System
Sixth Edition, 2003
Cavendish Publishing
- Wheeler, John
The English Legal System
2002 Edition
Pearson Education
List of Cases
- Bonsor v Musicians’ Union [1955] 3 All ER 518
- British Telecommunications v Sheridan [1990] IRLR 27
- Lee v Showmen’s Guild [1952] 2 QB 329
- Peach Grey v Sommers [1995] 2 All ER 513
- Post Office v Lewis {1997}
List of Statutes
- Access to Justice Act 1999
- Employment Protections Act 1975
- Employment Relations Act 1999
- Human Rights Act 1998
- Industrial Training Act 1964
- Industrial Tribunals Act 1999
- Tribunals and Inquiries Act 1992
