Critically evaluate the ability of tribunals to deliver effective administrative justice. Introduction Tribunals are statutory bodies that hear and determine appeals by individuals against initial decisions made by government decision-makers. Tribunals are often seen as an alternative to the mainstream process of going through a court procedure to resolve matters such disputes, which are in general seen as more formal and expensive. Tribunals hear appeals regarding administrative decisions, take for example, decisions made about pensions, welfare or immigration issues.
Additionally, tribunals also provide relief to the enormous volume of appeals heard by the courts. These are some of the reasons why tribunals exist in the UK. As summarised by the Frank Report the “cheapness, accessibility, freedom from technicality, expedition and expert knowledge” are the strengths of the enforcement of tribunals. According to the Annual Tribunal Statistic Report made by the Ministry of Justice (2011-2012), a total of 739,600 receipts or claims to all tribunals during 2011-12 (1 April 2011 to 31 March 2012).
This clearly shows that tribunals have a crucial and important role in the UK’s administrative system. This essay aims to evaluate the effectiveness of tribunals to carry out administrative justice in the United Kingdom. The AJTC (Administrative Justice and Tribunals Council) defines administrative justice as “regulating decision-making, and the systems (such as the various tribunals and ombudsmen) that enable people to challenge these decisions made by the government.
” In order to assess how effective, I will look at it’s merits as discussed further below. Cost and technicality In general, one of the main advantages of tribunals is that it is seen as cheaper, faster and less formal than courts. Tribunals are freed from technicality in comparison to the strict rules of evidence and procedure as adopted by courts, the tribunal process is more simplified. As seen from Leggatt Review on tribunals where it is commented that, “ It is fundamental to the reason why tribunals exist separately from the ordinary courts.
With very few exceptions the aim should be that tribunals’ distinctive procedures and approach should enable users to prepare and present their cases themselves. ” In the tribunal process people are able to represent themselves thus this reduces legal fees thereby greatly decreasing the cost for an appeal. However, in recent years there are various claims that tribunals are becoming more expensive and complex. According to ACAS (Advisory, Conciliation and Arbitration Service) appeals made to employment tribunals costs the employer an average of ?
2,000 just to complete the tribunal form, and up to ? 4,210 for advice and representation after the claim has been submitted. It was also commented that tribunals are becoming slower, taking up to six months for appeals to be heard. Furthermore, following the Tribunals, Courts and Enforcement Act 2007. It has organised the tribunals but also made the system of tribunals more complex as there are too many different types of tribunals, due to the division of tribunals by the two-tier structure. Expert Knowledge
One of the main areas where tribunals are seen to be effective in the area of administrative justice is that tribunals specialize in hearing different types of claims. The Tribunals, Courts and Enforcement Act 2007 created the two-tier system dividing the various types of tribunals. All appeals and claims are made by the Judicial Appointments Commissions, where appointments are given to people from the area of legal expertise involved and also other adjudicators from the outside chosen for their area of expertise.
This encourages diversity and familiarity with the legal issues as well as other relevant factors and thus ensuring a more effective, in-depth understanding to the matter and reach a fair decision to the claim. Furthermore as advocated by Leggatt, tribunals tend to move away from the traditional and rigid court approach when hearing appeals, thus claimants are able to gain more support by the chairman in charged of the case and this creates an increased degree of fairness and thus making tribunal an effective aspect in dealing with administrative justice. Representation and Funding
As discussed above, Tribunals in general are less formal, and thus the necessity of engaging a lawyer for representation in not compulsory as to save legal cost and time. There is a generally no legal aid provided with regards to tribunal proceedings, whether is it funding or legal advice. Individuals who represent themselves may not have they required skills to prepare their claims as they lack the advocacy skills that qualified legal adjudicators may have. Appellants may not also have the knowledge of tribunal rules and procedures to best represent their claims.
Hence this would create a distinct disadvantage for appellants. Statistics has shown that there is a 49% success rate for appellants with a lawyer while only 28% succeed without. Here, there exist an unfair imbalance of represented and unrepresented parties this contradicts the 2007 reform act which advocates fairness. Furthermore, according to the Immigration and Asylum Chamber, the average success rate for unrepresented Asylum appeals, in the period 1st April 2011 to 31st March 2012, was 4. 9%.
However, the Leggatt report claimed that representation meant that, “cost, formality and delay” would be added to the tribunal proceeding, and this would create a less efficient demonstration of administrative justice. Instead the Leggatt report was convinced that a combination of good-quality information, effective procedures, well conducted hearings and well-trained tribunal members would aid claimants to put forth their case more effectively. Nonetheless, there still exist some inconsistency of the effectiveness of tribunals in delivering effective administrative justice.
Access to Tribunals The very fact that the approach of tribunals is less formal this makes it more accessible to the public. The less strict rules and approach compared to the mainstream court procedure would encourage claimants to come forth with their claim providing them with more confidence as there are less intimidated. However, while tribunals hear more appeals than courts in general, it can be seen that potential claimants who are able to pursue an appeal decide not to do so.
For example, social security policy requires civil servants to make millions of decisions with regards to welfare benefit but less than 1% of unsuccessful appellants decide to appeal even though the success rate is 40%. Here, we can see a flaw in the system as potential claimants might not be aware of their rights in tribunal appeals or that tribunals are simply too remote or complex for their understanding. Another area that can be looked at would be the cost factors, although tribunals do not charge appellants for appeal fees the cost of legal aid and representation may deter potential claimants to appeal.
On a whole there is a limited effectiveness of tribunals in the ability to carry out administrative justice. Enforcement and Impact It is noted that tribunals do not any powers of enforcement, however the decisions are legally binding on the relevant parties involved thus there exist a limited amount of enforceability. In general, parties would accept tribunal’s decisions unless there is a challenge drawn. In rare situations where the government rejects tribunal decisions, the courts can enforce it.
In R v Secretary of State for the Home Department, the court used it powers and concluded there has been unfairness in the case and an abuse of power, and the tribunal decision was enforced. Here, we can see that the appropriate can enforce its decisions through legal means. But, there are aspects of tribunals that limit their effectiveness such as tribunals are unable to bring forth government activities to systematic scrutiny. Hence, there would exist cases of unfair and incorrect government decision making.
They are able to only handle appeals that are brought to their concern. Also tribunals powers are limited, hence the impact on government decisions is also widely affected. Take for example the case of Marshall v Southampton. Although the appeal succeeded the to House of Lords it was still dismissed, this shows that tribunals have limits to their powers. Hence, this creates a limited effectiveness in the conduction of administrative justice by tribunals. Conclusion
It can be seen that there exists arguable flaws within the tribunal system in the United Kingdom. The recent reforms such as the 2007 act have created a more formal and complex atmosphere in tribunal proceedings. Despite the drawbacks, it can be said that tribunals still play an important role in creating an effective administrative justice by providing opportunities and space for the public to come forth with to resolve their various matters or disputes. All in all, it cannot be denied that tribunals provide some level of impact in government decision-making.