. 133
( 155 .)


usually a lawyer, and two other appropriately quali¬ed members. As Lord Hope
remarked in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2,
[2006] 1 WLR 781 at [22]: ˜One of the strengths of the tribunal system as it has
718 British Government and the Constitution

been developed in this country is the breadth of relevant experience that
can be built into it by the use of lay members to sit with members who are
legally quali¬ed™.
The Franks Committee said that the public acceptability of adjudications by
tribunals was a vital element in sustaining that ˜consent of the governed™ on
which government in this country fundamentally rests. If public acceptability
was to be assured, they added, the working of tribunals must be marked by the
characteristics of openness, fairness and impartiality (Administrative Tribunals
and Enquiries, Cmnd 218/1957):

24. Here we need only give brief examples of their application. Take openness. If these
procedures were wholly secret, the basis of confidence and acceptability would be lacking.
Next take fairness. If the objector were not allowed to state his case, there would be nothing
to stop oppression. Thirdly, there is impartiality. How can the citizen be satisfied unless he
feels that those who decide his case come to their decision with open minds?
25. To assert that openness, fairness and impartiality are essential characteristics of our
subject-matter is not to say that they must be present in the same way and to the same
extent in all its parts. Difference in the nature of the issue for adjudication may give good
reason for difference in the degree to which the three general characteristics should be
developed and applied. Again, the method by which a Minister arrives at a decision after a
hearing or enquiry cannot be the same as that by which a tribunal arrives at a decision. . . .
[W]hen Parliament sets up a tribunal to decide cases, the adjudication is placed outside the
Department concerned. The members of the Tribunal are neutral and impartial in relation to
the policy of the Minister, except in so far as that policy is contained in the rules which the
tribunal has been set up to apply.

The need to defend the principle of impartial adjudication by independent tri-
bunals has been a constant theme in the reports of the supervisory body, the
Council on Tribunals. In its Annual Report for 1989“90, for instance, it
expressed disquiet at a tendency for the government to substitute internal
departmental review in place of a right of appeal to an independent tribunal:

1.3 Recent legislative proposals (some of them now enacted) have suggested to us that
the avenue of appeal to a properly constituted and independent tribunal, which we have
consistently advocated as the most appropriate course to test the correctness and fairness
of administrative decision-making, is being compromised to a worrying degree. The causes
are no doubt various, but a common and underlying motivation would appear to be the effort
to economise on the resources devoted to appeal procedures. We wholly support the need
for efficiency within appeal procedures, but are unequivocally opposed to measures which
provide on grounds of economy inadequate safeguards for appellants and the public at large.
1.4 At the risk of over-simplification and repetition of the familiar, it is worth bearing in
mind that the virtues of the tribunal mechanism of appeal lie in its independence and the
719 The courts: judicial review and liability

public perception of that independence; and in the application in practice of the principles
of openness, fairness and impartiality advocated by the Franks Committee Report (Cmnd 218)
in 1957, which have always underpinned our work. The right of an individual complainant
to put his grievance to a body known to be and readily capable of being perceived as
independent and, where necessary, to test the validity of a decision complained of is, in
principle, not only the fairest way of disposing of the issues but also the most comprehen-
sive way of ensuring that an individual with a grievance can be satisfied that his case has
been fairly considered “ even if it fails on the issue in dispute.

(See also paras 2.16“2.30; Annual Report (1990“91), paras 3.25“3.27; Annual
Report (1991“92), paras 2.28“2.30; Annual Report (1995“96), para 2.6.)
The Council on Tribunals has declared that ˜the principal hallmark of any
tribunal is that it must be independent™ and ˜be enabled to reach decisions accord-
ing to law without pressure either from the body or person whose decision
is being appealed, or from anyone else™ (Tribunals: their Organisation and
Independence, Cm 3744/1997, para 2.2). As well as the Franks Committee™s trinity
of openness, fairness and impartiality, there are other standards for the evalua-
tion of tribunals. The JUSTICE“All Souls Report listed those of ˜e¬ciency,
expedition and economy™ (Administrative Justice (1988), para 9.6), while Roy
Sainsbury elaborated and added to the Franks criteria in his proposal of a
standard of ˜administrative justice™, embracing ˜accuracy of decision-making,
impartiality, participation, accountability, independence, and promptness™
(˜Social security appeals: in need of review?™ in W Finnie et al (eds), Edinburgh
Essays in Public Law (1991)). As may be supposed, these standards are not always
fully met; in particular, the Council on Tribunals has from time to time drawn
attention to delays in the hearing of cases by some tribunals. The judgement
of the Leggatt Report (Tribunals for Users: One System, One Service (2001),
Overview, para 2) was that ˜their quality varies from excellent to inadequate™.
A further important standard is that of accessibility. An individual aggrieved
by an adverse administrative decision should be informed of any right to chal-
lenge it before a tribunal and should not be denied the opportunity of e¬ective
challenge by lack of means. Ideally, no doubt, the procedure of tribunals should
be su¬ciently simple and informal to allow ordinary citizens to conduct their
own cases; but even if attainable, this is not enough. Hazel Genn™s study of tri-
bunal procedures, decision-making and outcomes led her to a bleak conclusion
(˜Tribunals and informal justice™ (1993) 56 MLR 393, 409):

One of the conclusions of the study was that despite the appearance of informality in tribunal
hearings, the inherently adversarial nature of proceedings, the necessarily ˜legalistic™ nature
of tribunal decision-making, the predictable inability of litigants convincingly to advocate
their own cases, and the limited ability of tribunals to compensate for these disadvantages,
results in hearings that may fail to do justice to the cases that come before them. In simple
terms this means that cases with merit are lost by default.
720 British Government and the Constitution

Many tribunals apply complicated bodies of law and their decisions may be of
great importance to the individual, for instance, as a¬ecting a person™s livelihood,
educational prospects, right to live in the United Kingdom or even personal
liberty (Mental Health Review Tribunals). Fairness “ and high standards of
decision-making “ will only be assured if there is adequate provision for legal
advice and assistance, and in the more complex cases legal representation may be
indispensable. The Community Legal Service system provides public funding for
˜legal help™ (advice and assistance) for tribunal appellants if they satisfy ¬nancial
eligibility tests and free legal advice may be sought from voluntary sector advice
agencies and law centres. Publicly funded representation is not, however, gener-
ally available but is provided for certain classes of tribunal proceedings (eg pro-
ceedings before the Asylum and Immigration Tribunal and Mental Health Review
Tribunals). It has been shown that legal or other specialist representation
increases the likelihood of success at tribunal hearings (Lord Chancellor™s Depa-
rtment, The E¬ectiveness of Representation at Tribunals (1989)), and the Council
on Tribunals in 1990 rea¬rmed its ˜settled view that publicly funded advice and,
where appropriate, representation should be available to those of modest means
who appear before tribunals™: Annual Report (1989“90), para 1.36. On the other
hand the Leggatt Report expressed the conviction ˜that representation not only
often adds unnecessarily to cost, formality and delay, but it also works against the
objective of making tribunals directly and easily accessible to the full range of
potential users™. (See para 4.21.) The Government has not been persuaded of the
need for funding to be generally available at tribunal proceedings.
The procedures for adjudication by tribunals should ensure fairness, clarity,
e¬ciency and as much informality as is compatible with orderly proceedings. In
1991 the Council on Tribunals published a Report on Model Rules of Procedure for
Tribunals (Cm 1434), presenting a set of model rules as ˜a store from which
Departments and tribunals may select and adopt what they need™ (Annual Report
(1990“91), para 2.4) when drafting or revising rules of procedure. The model
rules have contributed to the di¬usion of good practice and have helped to bring
about a degree of uniformity and simpli¬cation of procedural rules.
Roy Sainsbury, re¬‚ecting on the criterion of ˜accountability™ in relation to tri-
bunals (in W Finnie et al (eds), Edinburgh Essays in Public Law (1991), p 342),
says that it requires ˜that individuals receive a comprehensible explanation of
the decision-making process and of the ¬nal decisions reached™. Accountability,
he adds, ˜serves a dual purpose™:

First, it is desirable, per se, that individuals understand why certain decisions have been taken
about them in order that they can be convinced of their acceptability. And secondly, if decision-
makers carry out the decision-making process in the knowledge that they must account for
their decisions, then they will be encouraged to be diligent and assiduous in the task.

The giving of reasons has additional importance in paving the way for challenges
to decisions in further proceedings.
721 The courts: judicial review and liability

Section 10 of the Tribunals and Inquiries Act 1992 provides that, subject to
speci¬ed exceptions, tribunals named in Schedule 1 to the Act (which are under
the supervision of the Council on Tribunals) are obliged, on request, to furnish
a statement, either written or oral, of the reasons for their decisions. In addition
the procedural rules of many tribunals have required reasons to be given
whether or not they are requested. In Re Poyser and Mills™ Arbitration [1964]
2 QB 467, 478, Megaw J said, with reference to the duty to give reasons (then
imposed by section 12 of the Tribunals and Inquiries Act 1958):

Parliament provided that reasons shall be given, and in my view that must be read as
meaning that proper, adequate reasons must be given. The reasons that are set out must be
reasons which will not only be intelligible, but which deal with the substantial points that
have been raised.

(See further R v Mental Health Review Tribunal, ex p Pickering [1986] 1 All ER 99;
R v Criminal Injuries Compensation Board, ex p Cook [1996] 1 WLR 1037, 1052“3;
R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923, [2003] 1 WLR 127.)
Under the Human Rights Act 1998, section 6, it is unlawful for tribunals, as
public authorities, to act in a way which is incompatible with Convention rights,
unless constrained to do so by statutory provision. Accordingly a tribunal must
not make a decision that infringes a Convention right of an appellant, as for
instance the right to liberty, or to respect for private and family life, or the right
to education. A tribunal™s own constitution and processes must be in confor-
mity with Article 6(1) of the Convention (right to a fair and public hearing by
an independent and impartial tribunal) in so far as the tribunal has to deter-
mine an appellant™s civil rights or obligations. In particular, the arrangements
for the appointment and tenure of tribunal members and for the administra-
tion of a tribunal and the conduct of hearings must be such as to give con¬dence
in the tribunal™s impartiality and independence. (Cf Scanfuture UK Ltd
v Secretary of State for the Department of Trade and Industry [2001] ICR 1096.)
Decisions of tribunals are in principle open to judicial review (but note the
markedly peremptory ouster clause in section 67(8) of the Regulation of
Investigatory Powers Act 2000, which provides that decisions of the tribunal
established by that Act, ˜including decisions as to whether they have jurisdic-
tion™, shall not be ˜subject to appeal or be liable to be questioned in any court™).
The availability of review should not, however, be accepted as a generally ade-
quate substitute for an appeal system. The Council on Tribunals expressed the
view that ˜wherever . . . it can be shown that the absence of an appeal procedure
is leading to the widespread use of judicial review as a substitute, there must be
a strong presumption that some form of appeal ought to be provided™ (Annual
Report (1992“93), para 1.52). There has often been statutory provision for an
appeal, usually to the High Court on a point of law. A general provision was
made by section 11 of the Tribunals and Inquiries Act 1992, allowing for such
appeals from decisions of a number of listed tribunals; others might be added
722 British Government and the Constitution

by orders made under the Act. Sometimes the initial appeal has been to a higher
tribunal, with the possibility of a further appeal to a court. The Leggatt Report
found the structure of appeal routes from tribunals to be ˜haphazard, having
developed alongside the unstructured growth of the tribunals themselves™.
A general supervision over most tribunals has been exercised by the Council
on Tribunals, established in 1958. The Council is required by the Tribunals and
Inquiries Act 1992 to keep under review and report on the constitution and
working of the tribunals speci¬ed in Schedule 1 to the Act. It must be consulted
before procedural rules are made for any of the scheduled tribunals. The
Council noted in its Annual Report for 1988“99 that its statutory functions were
˜almost entirely advisory and persuasive™ and further were ˜largely con¬ned to
advising on procedural matters relating to speci¬ed tribunals™ and certain
inquiries, and continued (para 1.58):

In practice, for many years our work has extended beyond these narrow confines. In partic-
ular, much of our most fruitful effort has been directed towards advising Departments at an
early stage upon whether new adjudicative appeal procedures are required and on what form
those procedures should take. It would be difficult to overestimate the significance of this
work: it hardly needs emphasising that getting mechanisms right “ that is, establishing
a properly constituted tribunal or other adjudicative body with the right kind of support and
the right kind of procedural regulations “ is a more economic and efficient way of proceed-
ing than correcting shortcomings in these matters when advice is sought at a late (some-
times a too late) stage. Yet none of this is reflected in our statutory functions. The reasons
for this, in so far as they may be sought in the immediate past, merit review.

In May 2000 the Lord Chancellor appointed Sir Andrew Leggatt to conduct
a wide-ranging, independent review of tribunals. Among other matters he was to
consider how to ensure that arrangements for the handling of disputes were ˜fair,
timely, proportionate and e¬ective™, as part of ˜a coherent structure, together with
the superior courts, for the delivery of administrative justice™, and assess whether
the administrative and practical arrangements, including representation, met the
needs of users and the requirements of the European Convention on Human
Rights. The Leggatt Report, Tribunals for Users: One System, One Service (2001)
proposed that the administration of tribunals should be organised in a single
Tribunals Service, providing support services for all tribunals, and work should
be set in hand to adopt common procedures and arrangements for case manage-
ment. There should be a single route for all appeals from ¬rst-tier tribunals to
a second tribunal tier and from the second tier to the Court of Appeal. The Report
made almost 300 detailed recommendations, covering such matters as appoint-
ments of tribunal members, training, case management, procedural rules, giving
of reasons and measurement of performance. The Government™s response to the
Leggatt recommendations was set out in the White Paper, Transforming Public
Services: Complaints, Redress and Tribunals (Cm 6243/2004), which envisaged ˜a
major consolidation, integration and simpli¬cation of the provision of tribunal
services™. A new, uni¬ed tribunal system for England would be created, bringing
723 The courts: judicial review and liability

together, at the outset, many of the largest tribunal organisations administered by
central government (eg the Asylum and Immigration Tribunal, the Social
Security and Child Support Tribunals and the Mental Health Review Tribunals in
England) in a single Tribunals Service providing common administrative
support. The Tribunals Service was established in April 2006 as an executive
agency within the Department for Constitutional A¬airs. Some of the tribunals
included in the new service had already been located within the Department for
Constitutional A¬airs while the others were transferred from their previous
sponsoring departments. Most other existing tribunal jurisdictions (unless
devolved), will become part of the Tribunal Service over the next few years, as will
new ones created in the future. This change, besides bringing improved ¬‚exibility
and administrative e¬ciency, is intended to emphasise the independence of tri-
bunals, which will not be administered by departments whose decisions they will
be reviewing. (Decisions of the Secretary of State for Constitutional A¬airs are
not of the kind that are taken on appeal to tribunals.)
The further reforms proposed by the Government required legislation and
were incorporated in the Tribunals, Courts and Enforcement Bill, introduced in
the House of Lords and given its second reading on 29 November 2006. The bill
provides for a structure of two new tribunals, a First-tier Tribunal and an Upper
Tribunal, to which the jurisdiction of existing tribunals may be transferred by the
Lord Chancellor. (The Asylum and Immigration Tribunal, which has a unique
single-tier structure, along with Employment Tribunals, remain separate but will
bene¬t from the common administrative support system.) Each tribunal will be
divided into chambers to which di¬erent specialist jurisdictions will be allocated,
those doing similar work being assigned to the same chamber. The legally
quali¬ed members of the tribunals are to be called judges. Apart from some ex
o¬cio members, judges and other members of the First-tier Tribunal will be
appointed by the Lord Chancellor, normally after selection by the Judicial


. 133
( 155 .)