Ability of tribunals to deliver effective administrative justice

Tribunals are set up as an alternative to the traditional court system and its operation alongside the court system has become an important and integral part of the legal system. [1] Most of the tribunals have been created in the late twentieth century with the development of the welfare state in order to give people a method of enforcing their entitlement to certain social rights. [2] With larger amount and range of disputes been brought forth in the recent years, many specialised tribunals were set up to deal with more specialised areas such as tax, state benefits and immigration.

Generally, tribunals differ from courts in a number of ways such as its relative informality and its capacity to provide cheap and speedy means of dispute resolution. In fact, the original intention for establishing many tribunals was to channel disputes away from the courts. [3] However, although the tribunal system has received many praises for dealing with the short comings of the courts to provide an effective mean for the public to contest the state and other public sectors, there have been some controversies surrounding its close resemblance to the court system that some argued that it offer no additional value to the judicial system.

To assess if such views are accurate we have to analyse a number of factors and characteristics of the tribunals and consider if they are indeed carrying out their functions effectively. First of all, one of the main merits of the tribunals is that they can provide quick, economical and fair resolution of disputes which makes it straightforward and assessable for the general appellant to get their case heard and resolved. This is an important point as the ordinary court is commonly slow with many procedural backlogs and unclear hearing dates.

In contrast, tribunals have more specific hearing dates with greater number of trials being decided each day. Hence, this judicial mechanism can be said to have “made an important contribution to keeping the wheels of justice and administration turning as swiftly and as smoothly as possible” [4] in this respect and effective in delivering administrative justice. Tribunals are also designed to be less adversarial and formal and hence it is a relatively cheaper means to justice than litigation in courts where costs court fees, legal representation and prolong hearings can result in extensive legal bills.

This characteristic of the tribunals allows more people to attain administrative justice through the judicial process as not everyone can afford to go to court to have their case heard. Moreover, the idea of proportionate dispute resolution [5] is also more encouraged through tribunals and hence more appellants are likely to bring forth their challenges through this instrument to obtain justice.

In this sense, more justice will be served through the tribunals for people with grievance which are important to them but are impractical to be resolved through a judicial process akin to that used by the higher courts [6] if the amount claimed is comparatively small for them to incur the high legal charges associated with that of the courts. Also, tribunals are also seen as a fair way to obtain administrative justice as they can set aside a decision made by the government agency if they deem that there is a better solution.

This is a particularly crucial argument for the tribunals’ ability to deliver justice as many government departments have been criticized over recent years for making poor decisions due to their priority for speed and volume over quality and accuracy. [7] For example, in AJTC’s report “Right First Time”, the National Audit Office had recorded nearly 1. 4 million cases been received through the central government’s redress system annually and costing about ? 708 million.

[8] Also, the number of cases going on appeal at the Tribunal Service has increased alarmingly in the recent years such as the dramatic increase of 26% in 2009, totally the number of cases to 793,900 in that year. [9] Likewise, this trend is also observed in relation to the number of complaints received by some public services Ombudsman in areas such as Parliamentary work and the NHS. [10] Furthermore, tribunals are also more competent in addressing the issue of legal and political accountability through giving people the platform to appeal against bureaucratic decisions.

This is an extremely difficult problem for Parliament to tackle on the other hand as it is both expensive and impractical to hold the ministers to account though judicial review. [11] Therefore, for all the reasons mentioned above, the presence of the tribunals is an effective means to deliver administrative justice as they are able to rectify the incorrect decision made by the government agency by substituting it with their own and also provide more direct means for people to remedy the gap in government accountability.

Another argument in support that the tribunals are effect is that they are specialised in hearing particular types of case as a tribunal usually have experts as adjudicators, either chosen specifically for their expertise or because hearing large amount of similar cases will give them familiarity with the law and the issues involved. [12] This as compared to a regular court which deals with a diversity of subject matters is able to provide more in-depth understanding on the case in question and reach a more informed decision.

Also, tribunals are tending to move away from the traditional, adversarial court approach towards a more “enabling” approach advocated by Leggatt [13] and so the appellant is given more support from the chairman in reviewing their case to ensure a higher degree of fairness. In the study by Baldwin, Wikeley and Young in Judging Social Security [14] for instance, it was found that the chairman’s handling of the case was described as excellent or good in 57% of the cases.

However, although theoretically tribunals are known to be able to provide quick, economical and fair resolutions to appeals in practice this might not always be the case. First of all, the ability of the tribunals to offer faster and more straightforward hearings may be overestimated and Fraser Youlson, the vice chair of the Employment Lawyers Association commented in 1993 that it could now take up to 18 months for cases which had previously taken only three to five months to be heard.

[15] This is seen in the case of Darnell v United Kingdom [16] where a doctor dismissed in 1984 started proceedings for unfair dismissal but only received the final decision in 1993 and his complaint to the European Court of Human Rights over the delay was upheld. Moreover, with the 2007 Tribunals, Courts and Enforcement Act which seeks to create greater order within the system, the process within the tribunals may be slowed down even further with the additional bureaucracy that they have lost their merit in providing an effective source of justice.

Also, a lot of the tribunals such as the Employment Appeal Tribunal have became so court-like over the years that many litigants struggled to understand the complex legislation without a legal representative which could jeopardise their case. In fact, statistics in the early 1990s have shown that there is a 49% rate for appellants to win their case with a lawyer while only 28% succeed without. [17]This could also cause an imbalance of power between the government agency and the individual appealing against it as the agency would have access to state resources and legal advice which is not available to the appellants in general.

This situation shows a serious flaw in the tribunal system to provide effective access to justice for all. Additionally, in many cases even if the individual could succeed in his case at the tribunal, many of them choose not to do so and it has been shown that less than 1% of unsuccessful applicants decide to appeal even though the success rate is 40%. [18] This reiterates the fact that tribunals may not be very effective in serving justice as the large number of injustice generated by the government agencies are not been passed on and address at the tribunals.

A number of factors have been deemed to have led to such a situation including a lack of public awareness for the service and physical or language barriers. In addition, many of the appellants are from deprived socio-economic background and likely to feel powerless in approaching such service and the absence of sufficient aid to assist such appellants in understanding the procedure could also discourage them.

In conclusion, although there have been many reasons to consider that tribunals are an effective means to administrative justice, some of their merits as being more efficient and less costly are overrated especially after the 2007 reform which made me much more formal and bureaucratic. However, it should also be noted that most of the drawbacks are not too serious and on the overall they still present a good and effective source of justice to the people.