Desirable Means of Resolving Disputes

Tribunals were mainly a twentieth century phenomenon, taking a variety of forms as they have become established in different areas of government activity. The diversity of the subject matter is obvious. Questions regarding individual welfare benefits arise before national insurance tribunals, while personal liberties are an issue for Mental Health Review Tribunals and Immigration Appeal Tribunals. Transport tribunals exist with the goal of economic regulation, while the interest of the state in raising revenue is an issue for the Commissioners of Income Tax and VAT Tribunals.

The tribunal system has long been an essential and integral part of the machinery of government and must not be dismissed lightly. A major advantage of tribunals is that expert knowledge of their particular subject can be given. Each tribunal is designed for the purposes of a particular statute and when any scheme of social welfare or regulation is introduced the best course of minimal resistance is to establish new ad hoc tribunals. There were over fifty types of tribunal falling within the Tribunals and Enquiries Act 19921 and after taking all of their subdivisions into account the total was in excess of 2,000.

The need for such diversity of tribunals is to match the diversity of case classification. The High Court, Court of Appeal and House of Lords have accepted that cases of an industrial classification required an expert knowledge and understanding of the industry which judges do not possess. The special experience of tribunals leads them into areas which bodies of more general jurisdiction would fail to enter. Disablement issues, for example, are referred to an adjudicating medical practitioner, with a right of appeal to a medical appeal tribunal.

Qualified surveyors are present at the Lands Tribunal and tax law experts sit as Commissioners of Income Tax. Such technical expertise naturally speeds up the judicial process which can be compared with the same process undertaken in the High Court, where a counsel generally require a day or more to explain the operation of a particular statutory scheme to a judge. Disputes must ideally be disposed of quickly and cheaply, to suit the public purse as well as the claimant.

In 1946 2the compensation claims of workmen were transferred from the courts to the tribunal system which resulted in the prevention of further unproductive and expensive litigation. This is an example of cases where money and time was saved in the deliverance of justice. Tribunals can potentially be an effective method of resolving disputes, however at times tribunals are not particularly quick. Although the tribunal system is on a whole much quicker than courts, the alacrity is overestimated.

In 19733 the Benefit Appeal Tribunals took two to four weeks to be concluded, and rent assessment committees determined outcomes within three months. There can be delays and duration of tribunals can vary. The average layman may have difficulty dealing with complex statutory schemes commonly arising in tribunals and the bureaucracy and paperwork required before a claim can be made may be slightly overwhelming. Although tribunal procedures are more straightforward than court hearings, the nature of tribunal adjudication is complex and it often takes time for the disadvantaged layman to prepare, present, and advocate a case.

There should be a change in the description of tribunals because there are definite misconceptions about their rapidity and the nature of the decision-making process. More representation is also a topic evoking much discussion. The decisions made in tribunals are supposedly free from the ties of political influence. Parliament has afforded tribunals with exclusive decision-making powers and with the exception of cases where appeal lies only to a minister, any decisions made as a result of any external influence should theoretically be deemed void.

There is however, considerable scepticism regarding the use of particular tribunals because it is believed that the tribunal form of administration leads only to a separation from parliamentary accountability and lack of legitimacy rather than to the achievement of decision-making independence. The establishment of immigration tribunals in 19694 is a good example of where such controversy was inspired. The tribunals were formed against a common law background which had not succeeded in affording any substantive or procedural rights to the individual aliens.

The discretion regarding immigration decisions was consequently transferred from the Home Secretary to the immigration appeal tribunal. Lord Hailsham LC 5was subsequently encouraged by this transfer to offer his rather controversial opinion that 'the proper authority to decide questions of policy which are embodied in the rather obscure phrase "discretion" which the tribunal can impose upon the Secretary of State, and therefore upon Parliament, without Parliament retaining control over it. '

I believe however that such a system of independent adjudication is required in such cases as the use of a tribunal takes the position of the individual into account rather than thinking solely of the power of government bureaucracy. Tribunals are particularly informal which can encourage the dispensation of justice in certain cases where a person find formality of the judicial proceedings slightly overwhelming and may be reduced to a form of verbal incoherence when required to make a statement or complaint.

Immigration is a particularly sensitive area where the individual is in a vulnerable position with regard to their lack of substantive and procedural rights. In certain situations it may be appropriate to refuse entry to the individual but an immigrant may not be able to recognise the reasons behind such decisions. It is clear that tribunals can offer a comforting format to protect the individual in these sensitive areas of law. Many people are appeased in a sense as they are given an opportunity to play a substantial role in the proceedings because of the informal open nature of tribunals.

The belief imposed by parliament that the tribunal system is an entirely separate decision-making body may indeed be a mask. Tribunals are governed by statute which in a sense automatically limits their decision-making powers. Tribunals are able to manage and administer a portion of funds and resources made available by Parliament and so the hands of the tribunal system will always be tied by Parliament. There are a finite number of resources available and so a decision favouring one individual could potentially affect the outcome for the next individual.

The appeasing of the people standing before a tribunal could again be rather false as there is a lack of representation and the people may feel as if their trials have been satisfactorily dealt with when in reality the decision made is merely a reflection of parliamentary instruction. I am therefore of the rather controversial opinion that the conception of tribunals as representing independent decision-making is rather farcical. The tribunals only lose their legitimacy through lack of legal representation and the intimated movement away from parliamentary control.