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A Lord Chancellor's Department Consultation Paper

Tribunals for Users
Consultation Paper about the
Report of the Review of Tribunals by Sir Andrew Leggatt

August 2001

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• Introduction
• How to respond
• Foreword
• Executive summary
• Tribunals for Users
• Delivering better services: a unified Tribunal Service?
• A more effective and coherent tribunals system



• Annex A: Terms of Reference
• Annex B: List of Tribunals



• Questionnaire
• Consultation Co-ordinator
• General principles of consultation

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Introduction

This paper seeks views on the main recommendations in the Report of the Review of Tribunals by Sir Andrew Leggatt. The consultation is aimed at people who use or work in all the tribunals in the UK. This consultation is being conducted in line with the Code of Practice on Written Consultation issued by the Cabinet Office. It falls within the scope of the Code. The Code criteria have been followed.

Copies of the consultation paper are being sent, among others, to the 290 people and bodies who responded to the consultation paper issued by Sir Andrew's Review Team in June 2000. This includes 100 representative, user and advice groups, 23 legal professional bodies and 22 Government Departments or agencies. The full list can be found at Annex A to the Leggatt Report, or a copy can be obtained from:

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How to respond

Please send your response by 30 November 2001, to:

Representative groups are asked to give a summary of the people and organisations they represent when they respond.

The Department may wish to publish responses to this consultation document in due course. Please ensure your response is marked clearly if you wish your response or name to be kept confidential. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.

Further copies of this Consultation Paper and the Response Form can be obtained from Frances Mascoll at the above address or by phoning 020-7210 8886.

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Foreword by the Lord Chancellor

The Government is today launching the next stage of its examination of reform of the Tribunal System, with the publication of the report of Sir Andrew Leggatt's Review of the System together with this consultation paper.

I would like to thank Sir Andrew and his team for their Report. They have put forward a far-reaching set of recommendations that we will want to consider, in consultation with user groups and others, before deciding finally on the way ahead. Tribunals deal with over a million cases a year - more than all the civil courts put together.

Most tribunals deal with cases that involve the rights of private citizens against the State. Many deal with issues that are central to the fight against social exclusion (for example, social security, child support and mental health). Tribunals are a large and important part of the justice system, that have not in the past received the attention and recognition they deserve.

The Government has already demonstrated its commitment to improving the services that tribunals give their users. We have created the unified Appeals Service, with executive agency status, to deal with social security and child support appeals; expanded and reformed the Immigration Appellate Authorities to deal more speedily with the increased number of asylum appeals; we are consulting publicly on employment dispute resolution, and we are undertaking a comprehensive review of the tax appeal system. The Leggatt Report provides the opportunity to take a fresh look, from an over-arching perspective, of the programme of modernisation already taking place in tribunals.

The Government is determined to modernise tribunals so they provide the best possible service to their users. We will judge Sir Andrew's recommendations against the criterion of whether they will contribute to improving the service that users receive.

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Executive Summary

Background

There are some 70 tribunals in England and Wales, administered by 10 Government departments and by local authorities. They deal with over a million cases a year, mainly appeals by individual citizens against administrative decisions by departments and other arms of the State. They range in size from the Appeals Service, which deals with over 270,000 social security appeals, to the 20 or so regulatory tribunals that rarely if ever sit.

In May last year, the Government commissioned an independent review of the tribunals system, led by Sir Andrew Leggatt, a former Lord Justice of Appeal, "to look at the administrative justice system as a whole: its coherence, its accessibility, its organisation ...". The Terms of Reference for the Review are at Annex A. The Review Team submitted its Report to the Lord Chancellor in March 2001.

The Government is today publishing the Report, and seeking views on its principal recommendations to inform final decisions on the way forward.

Summary

The Leggatt Report makes a number of recommendations on which the Government needs to consult. The majority of the recommendations in the Leggatt Report are aimed at improving the services that tribunal users receive. These include recommendations about better access to information and advice, a Customer Charter setting out service standards, improved tribunal procedures, promoting better initial decision-making by departments, and IT to meet the Government's target of offering all its services on-line by 2005 (paragraphs 1-4).

The Government believes that tribunals fully meet the standards of independence and impartiality required under the Human Rights Act. It seeks views on the Report's recommendation that tribunals should be administered separately from the departments whose policies and decisions they oversee, in order to enhance users' confidence in their independence (paragraphs 5-9).

The Government seeks views on whether service improvements would be delivered more effectively by establishing a unified Tribunal Service or within existing structures or by some intermediate solution (paragraphs 10-13).

The Government seeks views on the status, scope, structure and governance of a unified Tribunal Service, should one be established (paragraphs 14-25).

The Government seeks views on a number of other important recommendations in the Report, which do not depend on the establishment of a unified Tribunal Service.

These recommendations concern:

• second appeals, precedent and judicial review (paragraphs 27-29);
• judicial appointments (paragraphs 30-31);
• procedural rules (paragraph 32); and
• public funding for representation (paragraph 33).

This paper does not deal with the Report's specific recommendations about particular tribunals or those which are not directly concerned with tribunals. Where appropriate, responsible departments will consult on these separately, and the Government will announce its conclusions in due course.

Nor does the paper discuss in detail the special arrangements that would be needed if the recommendations of the Report were to apply where a tribunal's jurisdiction extends to areas of devolved responsibility in Scotland, Wales or Northern Ireland. The Government will consult the devolved administrations about whether and how changes should be implemented there.

The Government recognises that many of the proposals in the Leggatt Report are controversial. The Report explores many complex issues that require a great deal more detailed analysis so that sound and practical decisions may be reached. The Government has an open mind and has not yet reached any decisions. It looks forward to hearing the opinions of users and other consultees.

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Tribunals for Users

1. When he announced the Sir Andrew Leggatt's Review of Tribunals, the Lord Chancellor said "Our drive for a more modern, integrated Government, puts the emphasis on what the user needs, not the provider. We must ensure that tribunals really are … responsive to the needs of a modern, diverse society". The title of Sir Andrew's Report, Tribunals for Users, reflects this emphasis, and the majority of its 361 recommendations are concerned with aspects of the service that tribunals provide to their users.

2. In particular, the Report stresses that "the distinctive procedures and approach of tribunals should operate so that there are few exceptions to the principle that tribunal users should be able to prepare and present their cases themselves" (recommendation 23).

3. The Report's recommendations about service to users fall into six main categories:

• Users should have access to the information they need to understand their rights and the tribunal process, and to enable them wherever possible to proceed without representation (recommendations 13, 22, 24-40, 79, 243-4, 271, 276-7, 282, 305, 321, 324, 331 & 358). These recommendations require both decision-making departments and tribunals to provide appropriate information to users.

• Similarly, users should have timely access to the independent advice (and, where necessary, legal representation) they need (recommendations 41-54, 296 & 325). The recommendation about funding legal representation is considered in more detail in paragraph 33 below.

• Tribunals should publish service standards (including standards for information provision), underpinned by arrangements to spread good practice, a range of administrative performance measures and systems for appraising judicial performance (recommendations 64, 77, 78, 82, 83, 161-7 & 231-2).

• Tribunals should adopt an 'enabling approach' giving the parties confidence in their ability to participate and in the tribunal's capacity to compensate for any lack of skills or knowledge; improved training for tribunal judiciary and staff should focus in particular on the skills needed to implement this approach (recommendations 68, 118-20, 135, 140, 141, 149-60).

• Procedures should be fair, economic, speedy and proportionate to the issues at stake (recommendations 16, 17, 80, 81, 88, 132, 134, 138 & 183-230). Tribunals should actively manage the progress of cases, ensuring that weak cases are weeded out at an early stage. The use of alternative dispute resolution should be encouraged.

• Some of these recommendations (recommendations 80, 138, 183 & 216-229) focus on the end-to-end process, including, where appropriate, initial internal reviews of decisions by the decision-making body and feedback from tribunals about systemic problems.




4. The Report also stresses the importance of coherent modern technology in delivering better and more efficient services (recommendations 234-249). New IT will also be needed, in many cases, if all tribunals are to meet the Government's target of offering all its services on-line by 2005.

Do you agree that reform of tribunals should focus on maintaining and improving the services that tribunals provide to their users in the areas identified in paragraphs 2-4 above? Are there other areas where improvements could be made?

Independence

5. The Report also stresses the need for tribunals, like the ordinary courts, to be independent and impartial.

6. The Government has already taken steps to ensure that tribunals meet the standards of independence and impartiality required by the Human Rights Act. For example, it changed the terms of appointment of part-time judicial tribunal members to ensure their independence, following the case of Starrs and Chalmers -v- Procurator Fiscal. Recent court decisions have confirmed that Employment Tribunals [Endnote 1] and School Admission and Exclusion Appeal Panels [Endnote 2] meet the required standards.

7. So the Government firmly believes that tribunals fully meet all human rights requirements and that no further changes should be required for that reason. However, it will take any necessary steps where the arrangements in any particular tribunal are found to be inadequate.

8. The Report argues that, regardless of human rights considerations, it is better for tribunals to be administered separately from the Department whose policies or decisions they consider. It argues that, whatever arrangements are in place to ensure that a tribunal is in reality independent and impartial, there is a risk that users will not perceive it as independent. It suggests that this, in turn, could undermine the user's confidence in the tribunal's decision and the system as a whole.

9. The Government intends to assess the recommendations in the Report primarily on the basis of whether or not they will improve the service that tribunals provide to users. So it is seeking views about the Report's conclusions on independence against that background.

Do you think that there is a risk that users will lack confidence in a tribunal's independence where it is administered by the Government Department that has responsibility for the subject area? If so, what evidence do you have to support this view? Could any lack of user confidence be addressed in other ways, for example by improved information? Do you see any other real benefits for users if different Ministers are accountable for tribunal administration on the one hand, and for the relevant policies and administrative decisions on the other? Do you think that there can be benefits from having one Minister responsible for both policy and tribunal administration that would be lost if these were separated?

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Delivering better services: a unified Tribunal Service?

10. A central theme of the Report is the establishment of a unified Tribunal Service to administer almost all tribunals. The Report argues that this is the only way to deliver, across the board, the service standards that it wishes to see. In particular, the benefits the Report sees in a unified structure are that:

• only an institution of that sort would have the weight and focus to drive through service improvements;

• it would enhance users' confidence in the system by removing any perception that tribunals are not totally independent;

• it is the simplest and most certain way to provide:

• a single focus and point of contact for users;
• a higher profile, status and authority for tribunals, better enabling them to influence the quality of initial decision-making by departments;
• electronic access to tribunals' services
• more challenging and fulfilling careers for staff, making it easier to attract and retain good quality staff;
• better geographical access to hearing centres, particularly for users of smaller tribunals and those living in rural areas; and
• larger centres enabling legally-qualified chairmen to sit in a number of jurisdictions;

and

• in the medium term, it would offer better value for money, for example through rationalising accommodation and a common IT system.




11. On the other hand, there are some disadvantages in creating a unified Tribunal Service. The most important of these are as follows.

• It would involve major structural changes that could distract attention and resources from delivering service improvements.

• It would break the existing close links between some tribunals and the departments responsible for the relevant administrative decisions and underlying policy. This could make it harder to manage the end-to-end process efficiently or to draw on the tribunal's expertise when developing policy. In some cases, it could also weaken the tribunal's links with organisations involved in the voluntary resolution of disputes.

• Change on this scale would have to be phased, and the timetable for implementation would have to be built around reforms that are already planned for particular tribunals. There would therefore be a lengthy period of change and uncertainty for users, judiciary and staff.

• A unified Tribunal Service could prove too large and cumbersome to deliver the benefits envisaged by the Report. There are wide differences between individual tribunals in terms of their subject matter and policy context and the nature of the expertise required by members. This might make it make it difficult to achieve the consistency of approach, the flexibility in deploying personnel and other resources, the common procedures and IT systems, and the better value for money envisaged by the Report.




12. The Government will therefore also wish to consider alternative approaches. It will identify and assess the options for improving standards of service within, or with limited changes to, the existing administrative structures. Delivering service improvements without creating a unified Tribunal Service might be achieved by:

• a commitment that all departmental tribunals will develop and implement Customer Charters and the other service improvements outlined in paragraphs 2-4 above, with an inter-departmental committee to drive and monitor progress;

• developing a portal, linked to the IT systems of individual tribunals, to offer users a single electronic point of access to most or all tribunals;

• changes to the system of judicial appointments, for example a common pool of suitable lawyers;

• joined-up arrangements for spreading best practice among tribunals, possibly including replicating the best of existing case management IT;

• joined-up arrangements to enable tribunals to share one another's hearing room accommodation and other facilities;

• an enhanced role for the Judicial Studies Board in training tribunal judiciary, along the lines envisaged by the Report (recommendations 156-8);

• an enhanced role for the Council on Tribunals to monitor and report on service standards from a user perspective; or

• by establishing separate executive agencies to administer particular tribunals or groups of closely related tribunals.




13. The Government's over-riding aim is to improve the services that tribunals provide to users. The question is whether this can be achieved more cost-effectively by creating a unified Service, through the structural status-quo or through some intermediate solution. So the Government is seeking views on the balance between the arguments in paragraphs 10 and 11 above. It also intends to conduct research into the views of tribunal users on the potential benefits to them of a single institution compared to a range of other options. And it will undertake a robust assessment comparing the costs, benefits and risks of pursuing service improvements through the establishment of a unified Tribunal Service and the other options. This will form part of the SR2002 review of the Government's medium-term spending plans.

Do you think that improved tribunal services would be secured more effectively and efficiently by (i) a unified Tribunal Service (covering all or most of the tribunals listed in the Report) or (ii) within or with limited changes to the existing administrative structure? Which of the options for change without a unified Tribunal Service, identified in paragraph 12, do you consider the most important? Are there any other options that should be considered?

14. The rest of this section considers issues that would arise if the Government decided to establish a unified Tribunal Service.

Status and accountability

15. The Report recommends that a Tribunal Service should be an executive agency responsible to the Lord Chancellor, the Minister responsible for the rest of the justice system in England and Wales (recommendation 63). It should be separate from the Court Service because a combined agency would be unwieldy. As an executive agency, the Tribunal Service would have published standards, performance indicators and targets; it would be directly accountable to a Minister; and its annual report would be published and laid before Parliament.

Do you agree that any unified Tribunal Service should be an executive agency responsible to the Lord Chancellor, or is there a better option?

Scope of a Tribunal Service

16. The Report contains a list of some 70 tribunals that Leggatt recommends should constitute the Tribunal Service. Annex B of this paper repeats that list, and also lists a few other recently or soon-to-be established tribunals.

17. The Report envisages that the Tribunal Service should only include tribunals constituted to make independent judicial decisions. It should not be responsible for bodies that are nominally tribunals but which take decisions that are part of an administrative process, for example the Patent Office tribunals (recommendation 21). The Government is also aware of arguments why School Admission and Exclusion Appeal Panels might not be considered 'judicial' tribunals. Admission Appeal Panels, for example, take decisions about the allocation of limited resources (school places). These might be seen as inherently administrative decisions that should be subject to local accountability.

Do you think that School Admission and Exclusion Appeal Panels should be seen as judicial tribunals, potentially within the scope of any unified Tribunal Service, or do they take administrative decisions that should continue to be subject to accountability at local level? Does Annex B list any other bodies that should be excluded from the scope of any Tribunal Service for similar reasons?

18. The Report discusses whether a national Tribunal Service should include tribunals that are currently administered by local authorities [Endnote 3]. It recommends that it should (recommendation 7).

19. The Report discusses whether a Tribunal Service should include tribunals that deal with disputes between private parties [Endnote 4], or concentrate solely on those which hear appeals by citizens against decisions of the State. On balance, it recommends that party -v- party tribunals should be included in any unified Tribunal Service (recommendation 10).

20. The Government fully appreciates the arguments that distinguish local authority and party -v- party tribunals from mainstream tribunals that oversee the decisions of Ministers and Government departments. In particular, party -v- party cases tend to be more adversarial in nature, so those tribunals require very different procedures to manage cases effectively. Moreover, close links between policy making and tribunal administration may be more important for party -v- party tribunals. The Government has not yet formed a view on whether either of these types of tribunal should be included within any unified Tribunal Service, and looks forward to hearing the opinions of consultees.

Should a unified Tribunal Service include or exclude (i) local authority tribunals; and (ii) party -v- party tribunals?

21. The Report recommends that the Tribunal Service should include all tribunals whose jurisdiction covers England, England and Wales, Great Britain or the United Kingdom (recommendation 251). A number of different arrangements currently apply in relation to tribunals whose jurisdiction includes areas of devolved responsibility in Scotland, Wales or Northern Ireland. The Government will consult the devolved administrations about whether these jurisdictions should be included in the scope of any Tribunal Service, and the particular arrangements that should then apply

Structure & Governance

22. The Report recommends that the Tribunal Service should be structured in Divisions (recommendation 89). Each Division would be a grouping of related tribunal jurisdictions headed by a judicial President (recommendation 110). A Senior President would head the tribunals system as a whole (recommendation 108). The Report argues that a divisional structure will benefit users by making the system easier to understand and therefore more accessible.

23. The role of the Presidents would be to promote consistency of decision-making and uniformity of procedure and practice. They would be responsible for the composition of the panels to hear individual cases, liaison with the Judicial Studies Board about training requirements, the system for appraising judicial performance within the Division, and the promotion of more consistent decision making.

Do you agree with the Report's recommendation that the tribunals system should have a divisional structure, with each Division headed by a judicial President? Do you agree with the proposed roles for the judicial Presidents?

24. The Report recommends that the Presidents and the Chief Executive [Endnote 5] should constitute a Tribunals Board to direct the system (recommendations 112-113). It also proposes a number of specific functions for the Board, for example advising on judicial training and appointments (recommendation 114). The Board should encourage user groups and consider how best to take advantage of their knowledge and experience (recommendations 55-56).

Do you agree that a Tribunal Service should be directed by a Tribunals Board? Do you agree with the Report's recommendation about the membership of the Tribunals Board, or would there be advantages in including more external representation? Do you agree with the Report's recommendations about the functions of the Board?

25. The Report recommends an enhanced role for the Council on Tribunals (recommendations 168-182). The Council should have the primary role of championing the cause of users. Its specific roles should include monitoring judicial training, the development of IT, the usefulness of the information provided to users and the adequacy of independent sources of advice (recommendation 172).

Do you agree that the Council on Tribunals should have an enhanced role to champion the cause of users? Do you agree with the Report's detailed recommendations about the functions of the Council? Could the Council's role be expanded beyond this?

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A more effective and coherent tribunals system

26. This section seeks views on some important recommendations that are intended to make the tribunals system more coherent and effective, but which do not depend on the creation of a unified Tribunal Service to administer the system.

Second appeals, precedent and judicial review

27. At present, there is a right to a further appeal against the decisions of some tribunals, but not others. The grounds on which these 'second-tier' appeals can be made vary. Decisions by second tier tribunals sometimes bind future decisions by first tier tribunals in similar cases; and sometimes not. A few second tier tribunals have an equivalent status to the higher courts, so their decisions cannot be challenged in the courts by way of judicial review; most tribunals can be challenged in this way.

28. The Report recommends that:

• there should be a right to a further appeal to a second tier tribunal (and beyond that to the Court of Appeal) in all tribunal jurisdictions, but the grounds for a second appeal should be limited to points of law only (recommendations 95 & 98); this would create new appeal rights in some cases (for example Mental Health Review Tribunals) and limit the scope of existing appeal rights in others (for example immigration and asylum);

• second tier tribunals should be able to specify that certain of their decisions are binding on the lower tier in future cases (recommendations 104-105); and

• tribunals should be expressly excluded from judicial review (recommendations 106-107).

29. The changes are intended to secure a more coherent system; clearer and more consistent decision-making; and a simpler, cheaper and quicker means of correcting flawed decisions where the only recourse now is judicial review.

Do you agree with these recommendations? Are there jurisdictions that should not have a second tier appeal, for example because it would introduce unacceptable delay? Are there jurisdictions where the grounds for a second tier appeal should be wider than a point of law? Should only selected second tier decisions be binding; or, given that they are limited to points of law, should all second tier decisions be binding? Should tribunals be excluded from judicial review, or should only second tier tribunals be excluded; or should judicial review remain available as now?

Judicial appointments

30. The current arrangements for appointing tribunal members are complex. The Lord Chancellor makes a large number of appointments, including to tribunals that are not administered by his department. In some cases, the Minister for the administering department or the local authority appoints all tribunal members. In some cases, the Lord Chancellor appoints legally-qualified chairmen, but the Minister for the administering department appoints lay members. Various different arrangements apply to tribunals that sit in Scotland, Wales or Northern Ireland.

31. The Report recommends that all tribunal members currently appointed by Westminster Ministers should in future be appointed by the Lord Chancellor (in consultation, as necessary, with other members of the UK Government and members of devolved administrations) (recommendation 4). The appointments system and procedures should be subject to oversight by the new Judicial Appointments Commission (recommendations 127 & 129-131).

Do you agree that all appointments to departmental tribunals should be made by the Lord Chancellor?

Procedural rules

32. The Report recommends that tribunals' procedural rules should be as consistent as possible, and generally based on the Council on Tribunal's model rules. But it recognises that there will remain some significant differences between jurisdictions (recommendations 199-200). The Report envisages that all procedural rules should be made by the Lord Chancellor (subject to consulting devolved administrations, the Council on Tribunals and others).

Would it benefit users if different tribunals' procedural rules were made as consistent as possible with each other? Should the Lord Chancellor be the Minister responsible for making all tribunals' procedural rules (even if he does not become responsible for the administration of all tribunals)?

Funding representation

33. The Report stresses that tribunals should operate in a simple and accessible way that ensures that the great majority of appellants are able to represent themselves. But it recognises that there will be some cases, for example some second-tier appeals on a complex or novel point of law, where this is not possible. The Report therefore recommends extending the scope of Community Legal Service funding to cover Legal Representation in tribunals where it is not available now, but only in exceptional circumstances (recommendation 48-49 & 52). Funding would be subject to a strict merits test in the Legal Service Commission's Funding Code [Endnote 6]. This might require that cases have good prospects of success and that there are objective reasons why the appellant cannot reasonably be expected to represent him or herself (for example language or mental difficulties, or complex legal issues).

Do you agree with this recommendation, or are there any tribunals for which public funding for representation should not be available in any circumstances? Are the proposed elements of the merits test appropriate?

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Annex A - Terms of Reference

The Terms of Reference for Sir Andrew Leggatt's Review of Tribunals were:

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Annex B - List of Tribunals

Tribunals listed in the Report by proposed Divisions