Rethinking tribunals

Proposals for tribunal reform in England & Wales

Major reform of appeal tribunals is now underway in England and Wales. These reforms have significant ramifications for Northern Ireland, yet the changes have generated little debate. In this article, Les Allamby sets out the reforms and what they may mean, in time, for Northern Ireland.

Tribunal reform

The White Paper Transforming Public Services: Complaints, Redress and Tribunals was published in July 2004.1 In effect, the White Paper carried forward, albeit in modified form, the proposals for reform of tribunals set out in the Leggatt report in 2001.2
There are over 70 different forms of tribunal in England and Wales (the vast majority of which are replicated in Northern Ireland). At the core of the White Paper’s proposals is the creation of a unified tribunals service managed by the Department of Constitutional Affairs (DCA). The new arrangements will cover, among others, social security, employment, immigration, mental health, tax, criminal injuries and special educational needs tribunals. Once implemented, the unified tribunal service will be responsible for over 90 per cent of all appeal tribunals.

The purpose behind the reform is to make explicit the independence of the tribunal system from the government departments responsible for decision making. It is also designed to promote greater consistency with proposals covering training, use of information technology, appraisal of tribunal chairs and panel members, more effective use of accommodation for hearing appeals. Moreover, greater flexibility will be introduced with those hearing appeals being deployed in more than one type of tribunal. Where appropriate, similar unification is also to be introduced for the second tier of appeals, bringing together the Social Security and Child Support Commissioners, the Lands Tribunal, Transport Tribunal and the new upper tier of reformed Tax Tribunals.

The White Paper is, however, about far more than administrative reform of appeal tribunals. It is, in fact, an attempt to examine the principles and philosophy that should underpin administrative justice and decision making, appeals and dispute resolution in general. It is also a meditation on the role of representation at appeals.

The White Paper acknowledges that a small percentage of inaccurate decisions in a large organisation can leave an unacceptable number of individuals disaffected by their treatment or deprived of a rightful entitlement. Unfortunately, it says relatively little about how the decision-making process can be improved. Moreover, there is merely a passing reference to the complexity of the law which creates many of the decision making difficulties in the first place. The White Paper argues the need to move away from the traditional emphasis on courts, judges, court procedures and legal aid for lawyers to litigate to resolve disputes. Instead, it proposes that policies and services to avoid disputes in the first place and to provide swift and cost-effective solutions to deal with problems need to be devised. This is summed up as ‘proportionate dispute resolution’. Few concrete proposals are forthcoming, though an emphasis on greater use of ‘reconsideration’ of decisions at an early stage is made. The experience of the re-consideration process introduced as part of the decision-making and appeal reforms for social security does not bode well. Here, the impact of reconsideration of earlier decisions has varied markedly between different social security benefits with no uniform approach and limited coherent monitoring of the outcome of reconsideration decisions. Surprisingly, given the view on lawyers, the legal members of tribunals will be renamed tribunal judges under White Paper proposals.

On representation, the White Paper endorses the Leggatt report's view that publicly funded legal representation is not appropriate beyond that already provided for mental health, immigration and certain other types of proceedings. The White Paper’s approach embraces the idea of appellants being able to represent themselves whenever possible but, arguably, not quite to the degree promoted within Leggatt. There is a recognition of the important role played by voluntary sector representatives alongside a desire to see the private sector take on an enhanced (though undefined) role.

The White Paper outlines a proposal to pilot schemes to provide appellants with assistance in information and evidence gathering, advising on the merits of an appeal and presentation of a case. This work will be done through the Enhanced Advice Project Initiative which will commence this year with a Chief Executive and Senior President already appointed (Peter Handcock and Lord Justice Carnwath respectively), the reform is now proceeding apace.

The position in N.Ireland

The White Paper recognises that the issues prompting reform are relevant to the administration of tribunals in Northern Ireland. It notes that Northern Ireland will consider the implications, take into account its own circumstances and that any reform programme will be the subject of separate consultation.

The Office of First Minister and Deputy First Minister is taking the lead on the issue. To date, it has been engaged in bilateral discussions with the Departments that sponsor tribunals to make an initial assessment of the relevance and practicalities for reform. This work has recently been completed and discussions are about to take place with the Northern Ireland Court Service about what further work will be necessary to reach a view on the way forward for similar reform. In effect, the government is currently playing its cards close to its chest about what, if anything, will happen. As a result, it is important that the voluntary sector and others interested in reform begin to make their voices heard. There are a number of important differences in the way tribunals are organised and administered, for example there is no Employment Appeal Tribunal in Northern Ireland. Instead, cases must go from industrial and fair employment tribunals to the Court of Appeal. In practice, few cases get this far and legal precedent in employment cases is relatively rare.

The Council of Tribunals which monitors and reports on the effectiveness of tribunals does not cover Northern Ireland. There is also no Civil Justice Council, despite the recommendation to create such a body in the Civil Justice Review 2000. Plans are afoot to belatedly examine this issue in the near future. These are important democratic deficits in accountability in the operation of the appeals tribunal system. In addition, research has consistently shown the value of getting representation before tribunals.3 The research findings are backed up by local evidence where, for example, having a representative trebles the chances of an appellant succeeding at a social security appeal tribunal.4 As a result, an equivalent Enhanced Advice Project within the voluntary sector is likely to reap tangible benefit.

Conclusion

The White Paper is an important document containing many positive statements of intent and principle. Its central proposal to administratively unify the tribunal system is sensible and progressive. There are also a number of valuable statements of principle about administrative law reform and tribunals. There remains, however, a continuing ambiguity about the role of representation at tribunals. Ideas to help appellants represent themselves are welcome, nonetheless, without proposals to tackle the complexity of the law, such an approach is unlikely to bear substantial fruit. In practice, representation (by the voluntary sector and in certain types of appeals by legally qualified advisers) will remain both in demand and necessary. An explicit recognition of this is essential until the thorny and complex question of simplifying the law and improving decision-making is grasped.
Tribunal reform in England and Wales is now underway and the issue has moved up the political agenda. It is now time to see similar momentum generated in Northern Ireland.