Much controversy arises from the lack of legal aid to cover all tribunals6, thus resulting in a lack of legal representation. Although I am of the opinion that tribunals are important in our legal system and should not be abolished, I am not of the rather blind opinion that there is no need for reform. The question of whether legal aid should be extended to cover representation by a solicitor or, where necessary, counsel in tribunal matters, is frequently discussed.
Many people are of the opinion that the extension of legal aid would lead to the formalisation of the current system, as legal representation would become more common in tribunals, however I am not sure this is sufficient justification for a refusal of legal aid extension. A further objection to legal aid is that this would lengthen the proceedings which are valued because of their rapidity. Evidence shows that solicitors conduct the preliminary stages of proceedings before a tribunal as they would do before a court.
They also tend to seek further particulars while taking other interlocutory steps which are not ideal for the type of work dealt with in tribunals. Members of the legal profession can also be inexpert in matters arising in certain tribunals. The misconceptions regarding rapidity of tribunals must be relayed to the public in order for the benefits of legal representation to be comprehended. Legal Aid has been extended, via the Legal Aid Act 19887, ss.14 (1) and 15 (1), 2nd schedule, to cover four tribunals only, the Lands Tribunal, the Employment Tribunal, the Mental Health Review Tribunal and the Common Commissioners.
However, I am of the opinion that a major reform in the tribunal system would be to extend legal aid to all statutory tribunals at present within the supervision of the Council on Tribunals in which representation is permitted. Most people appearing before a tribunal are disadvantaged by their lack of skill and confidence to deal successfully with their case, often finding it difficult to deal with complex issues which arise.
Legal representation is clearly required in these particular cases and as solicitors become accustomed with the type of work required for a tribunal, they will undoubtedly cease to take steps which are rarely suited to the particular cases dealt with by tribunals. The report entitled "The Effectiveness of Representation" by Hazel and Yvette Genn 8should certainly be addressed when looking at the importance of properly funded representation in tribunals. The emerging evidence from the report suggests that the success of trial outcomes is significantly affected by the quality of representation.
Certain tribunals are of a specific nature where the law can be rather complex and skilled representation is necessary to ensure a balanced trial with a more promising chance of success. Advice agencies are also held within the report to play an important role in the tribunal system and more funding should be distributed to these bodies. The pre-hearing advice was found to be of equal importance to representation, and funding is therefore required in this area.
Advice and representation, and improved training and monitoring of tribunals would undoubtedly increase the rate at which cases are brought before tribunals. With extra funding to encourage representation, tribunals could potentially function as effective review mechanisms. However, this may not actually be the underlying purpose of the tribunal system. The purpose for the current existence of tribunals may indeed be to mask unpopular social regulation and issues with a cloak of legitimacy.
However, if the stated goal of tribunals to keep administrative decision-making in order, rather than to provide a forum in which disappointed applicants can voice their complaints without obtaining the result sought, then the defects of such a system must be addressed. The report made by a team under the leadership of Sir Andrew Leggatt in May 20009 suggested reforms for the tribunal system. The report suggested that an executive agency, referred to as the Tribunals Service should be created with the goal of administratively supporting the abundance of tribunals.
The aim would be to divide the tribunals into nine groups, all of which adhering to a presidential format with the High Court judge in position of President. The report clearly argues that the benefits of such a unified system would be efficiency as there would be published targets to be met. The Tribunals Service would require feedback from users regarding their experience of the system which would in turn be fed back to the various departments to improve quality and rapidity of decision-making.
The Lord Chancellor would be responsible for the appointments and the training of members in order to direct tribunal proceedings to the advantage of the users. Monitoring of proceedings and members would be crucial to the success of such a scheme. Tribunals play an important role within legal spheres as expert knowledge can be accessed easily in specialist areas and there are certain tribunals which exist in areas where the use of a court would not be appropriate.
Certain tribunals, for example, operate as alternatives to departmental or ministerial decision-making rather than court substitutes. Evidence has also shown that although tribunals are not as rapid as they are famed for, they are certainly much quicker than court hearings. Tribunals do therefore serve a necessary purpose and are effective in dispute resolution in certain respects. However the aspects of flexibility they are famed for must be questioned as they are all still bound by the precedents set by decisions of ordinary courts, statute, and perhaps even the instruction of parliament.
The need for reform cannot be ignored and the ideal aim would be to strike a balance between the need for procedural simplicity and legal precision, in order to strive for substantive justice. The extension of representations as indicated by the Genn report would be the most appropriate step towards legal precision. The reforms within the 2000 report, when activated would act as a simultaneous step towards procedural simplicity via the amalgamation of tribunals and legal precision via the consistent monitoring of all aspects of the tribunal system.