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.