A fair hearing

Tribunals face huge upheaval under government proposals.

Grania Langdon-Down analyses how a unified service and more independence will help tribunals to comply with human rights

Tribunals in England and Wales look set for a massive reorganisation.

This follows the clearest indication yet that the government intends to implement proposals that would see the Lord Chancellor's Department (LCD) bringing tribunals - which are currently scattered among different government departments - under a unified service.

The government's plans for tribunals is expected to be formally announced within the next few weeks.

While there has been some resistance in Whitehall from departments unwilling to hand over responsibility for their tribunals, Sir Hayden Phillips, the LCD's permanent secretary, recently told the media that he hoped the Leggatt report on tribunals would be implemented.

Sir Hayden added that if ministers agreed, the tribunal reorganisation would happen in 2006-2007.

Given that the LCD is already poised to assume responsibility for a unified courts system in 2004-2005 under the Courts Bill, this would mean the department more than doubling in size from its present 12,000 staff to about 25,000.

Law commissioner Professor Martin Partington sat on the Leggatt review, which identified 70 tribunals, hearing about a million cases each year and employing 3,500 people.

Some of these tribunals were defunct, while others heard hundreds of thousands of cases a year.

He says: 'There must now be high expectations that the Leggatt proposals will be implemented.

The important thing is to give tribunals real independence from their sponsoring departments - and so comply with the Human Rights Act.

The only way to do that is to concentrate them in one location and the only location which seems to me to be sensible is in a kind of ministry of justice, such as the LCD, which is independent of most day-to-day battles.'

He says there is a common assumption among lawyers that 'when you talk about tribunals you mean employment tribunals.

I don't blame lawyers for this - legal aid is not available in most and you don't get rich and famous running social security cases.

But tribunals do matter because they affect so many areas of people's lives.'

Professor Partington is now, as a law commissioner, looking into eight land, valuation and housing (LVH) tribunals and has published a consultation paper suggesting options for reform (see [2003] Gazette, 9 January, 4).

He explains: 'Leggatt developed a blueprint for the way in which tribunals could be turned into a more coherent structure.

We had a number of representations from practitioners that the LVH tribunals were rather chaotic, with new powers and new interfaces with the courts, and weren't working very sensibly.

However, his report was completed from scratch in just ten months, so we now need to look at the LVH tribunals in much greater detail.'

Jason Hunter, head of the contentious property team at London firm Russell-Cooke and vice-chairman of the Property Litigation Association, agrees that reorganisation is needed as the expanding remit of tribunals, such as the leasehold valuation tribunal, threatens to clog the system.

'I can see merit in having a single tribunal but that is some way off - rationalisation with a common appeal route is more likely to be realistic.'

The Leggatt report argues that tribunals will only acquire a collective standing to match the court system once all tribunals - both administrative tribunals concerned with disputes between citizen and state, and those concerning private parties - are brought under one administration.

Within that structure, there will be first-tier tribunals, such as employment, education, immigration and health, with corresponding appellate tribunals.

However, Sir Andrew Leggatt also recognised that employment tribunals are different and should be administered by a separate section of the tribunal service with its own head.

Janet Gaymer, senior partner of City firm Simmons & Simmons, chaired last year's employment tribunal system task force.

In November, the government accepted its 61 recommendations for modernising the system, including setting up a co-ordinating advisory body and a national user group.

'By implication, the government accepted that employment tribunals will be "doing their own thing" for the foreseeable future,' she says.

Barry Mordsley, head of employment at City firm Salans and the longest standing part- time tribunal chairman, with nearly 19 years under his belt, agrees.

He maintains that employment tribunals have become so significant in terms of the amount and the importance of their workload that they need to be dealt with separately from other tribunals: 'I don't see the service sitting within a unified service la Leggatt.'

He says the most significant of the task force's recommendations is to ensure parties are more aware of the other side's case and understand what is at stake.

'What irritates me as a chairman and as an advocate is where you have someone - usually an employee but sometimes an employer - who does not understand the strength of points being put forward.'

For Julie Quinn, partner in City firm Allen & Overy's employment department, reform is vital or the system will grind to a halt.

'What is needed is to keep disputes out of the system but, once they are there, to weed out weak cases much earlier on.'

Katie Jackson-Turner, head of discrimination and legal director of employment at Addleshaw Booth & Co in Manchester, highlights long delays in getting cases heard - in Manchester, a two-day hearing listed today will not get heard until December - and inconsistencies between tribunals as major problems in need of reform.

As with employment, education tribunals are also seeing their remit expand as they take over issues of disability discrimination.

For Jack Rabinowicz, a top education law specialist and partner at London firm Teacher Stern Selby, the real question is: 'When is there going to be an independent tribunal to deal with appeals, similar to the Employment Appeal Tribunal, so cases don't have to go on to the High Court?'

David Mylan, a sole practitioner in Suffolk, is a part-time Mental Health Review Tribunal president for the North Thames and East region.

He says tribunals will face massive upheaval once the government gets a new Mental Health Act on the statute book, because they will be involved at a much earlier stage, and will make the orders for individuals to be detained to ensure the system is compatible with the Human Rights Act 1998.

'There will need to be massive administrative changes and training and this is the stage to consider whether the tribunals would be better run under a different structure,' he says.

'I am also on the Parole Board and members think they might be better off under the LCD than their sponsor department of the Home Office.

However, what you are doing is getting rid of the problem you can see but you cannot be sure what new problems you might get in their place.

I can't see any change making the situation worse but the devil will be in the detail.'

Roger Bingham, spokesman at human rights group Liberty, says the Leggatt proposals will remove the perception that tribunals are not independent from their sponsor departments.

'However, there is a bigger concern that a unified tribunal system may be too cumbersome,' he notes.

Roger Goodier, solicitor chairman of the Criminal Injuries Compensation Appeals Panel (CICAP), adds: 'We can see some benefits from the Leggatt proposals with reference to core facilities, but we are more nervous about a generalised tribunal service because there are areas of expertise which have been built up in tribunals such as CICAP which would be difficult to incorporate.'

For Ms Gaymer the key point is that tribunals have come of age.

'They are no longer the homely creatures of civil servants,' she says.

'They are now established components of the civil justice system and should be resourced and operated accordingly.'

Grania Langdon-Down is a freelance journalist

Council on Tribunals

There are upwards of 85 tribunals in existence, most of which are under the general supervision of the Council on Tribunals.

These range from the Agricultural Land Tribunals to the Wireless Telegraphy Appeal Tribunal.

The fields of education and pensions account for the most tribunals, with six each.

Education, for example, has the Independent Schools Tribunal, exclusion appeal panels, admission appeal panels, the Special Education Needs Tribunal, the Registered Inspectors of School Appeal Tribunal and school standards adjudicators.

Well-known bodies such as the Civil Aviation Authority, National Lottery Commission, Comptroller-General of Patents, Designs and Trade Marks, and the Occupational Pensions Regulatory Authority come within the council's jurisdiction.

Some of the more obscure tribunals include the Antarctic Act Tribunal, the Chemical Weapons Licensing Appeal Tribunal, the Mines and Quarries Tribunal, the Plant Varieties and Seeds Tribunal and the Sea Fish Licence Tribunal.

None of these has ever sat, except the plant tribunal, which last sat in 1984.

Tribunals that are not under supervision by the council include the Employment Appeal Tribunal and the Intelligence Services Tribunal.

The Investigatory Powers Tribunal

The tribunal was set up by the Regulation of Investigatory Powers Act 2000 (RIPA).

It deals with complaints about allegedly unlawful surveillance, including telephone tapping and the use of listening devices by the police, Customs & Excise, MI5, MI6, and GCHQ.

The tribunal, made up of senior judges and lawyers, has right of access to all relevant material held by the intercepting agencies.

If they find the law has been broken, they must inform the complainant and the prime minister.

The tribunal has received 102 applications between its formation in October 2000 and December 2001.

None has been upheld as in contravention of the RIPA or the Human Rights Act 1998.

However, it made a key decision last month in an appeal brought by human rights group Liberty and others when it quashed rules made by the home secretary which required the tribunal to hold all its hearings in secret (see [2003] Gazette, 30 January, 4).

In future, the tribunal will be able to hear some parts of some cases in public, allow complainants and their lawyers to be present at some hearings, and give reasons for its decisions.

Hunting tribunal

This is set out in the Hunting Bill, which proposes it should come under the Lord Chancellor's Department.

Once the registrar has decided whether or not to grant a licence to hunt to an individual or group on the two tests of utility and least suffering, unsuccessful applicants and the prescribed animal welfare bodies will be able to appeal to the tribunal.

If they lose there, they can appeal on a point of law to the High Court, either with the permission of the tribunal, or if the tribunal refuses permission, the High Court.

Information tribunal

Its role is to determine appeals against enforcement notices issued by the Information Commissioner.

It has heard only about 20 to 30 appeals since it was first formed under the old Data Protection Act 1984.

The Act provides an exemption from its provisions on grounds of national security.

The updated 1998 Act for the first time allowed national security appeals.

In the first challenge, brought by Norman Baker MP, the tribunal decided that the blanket exemption was unnecessarily wide and cases should be dealt with on a case-by-case basis.

Employment tribunals

For Judge Goolam Meeran, the new president of the employment tribunals in England and Wales, the top priority for his five-year posting will be to improve the quality of case management and ensure a greater consistency so practitioners know what to expect whichever region they appear in.

Judge Meeran, 59, has spent the last decade working in the employment tribunals, first as a full-time chairman, and then as regional chairman in London and the south region.

'Tribunals need to remember that our procedures are there to meet the needs of users - not for our own benefit.

We have been doing case management for years but it is inconsistent in practice.

Another weakness has been in monitoring case management directions.

There has to be compliance otherwise it is a pointless exercise.

He says the government has also acknowledged the need to improve employment tribunals by accepting the employment tribunal system task force recommendations.

He accepts that, given the complexity of legislation, people representing themselves can be disadvantaged.

'I can't see legal aid being extended to employment tribunals but you can't leave things as they are.

There are those who are resistant to change and, quite properly, want to protect judicial independence.

However, that can be a formula for changing nothing.'

In the year to March 2002, there was a threefold increase in costs awards against respondents, though this involved fewer than 1% of cases.

Judge Meeran says: 'There are draft rules on procedure going out to public consultation which will include the issue of costs but I can't see a situation where costs will ever follow the event.

Tribunals will always have to be satisfied that costs awards are justified on the grounds of the party's conduct and are not used as a deterrent to genuine complaints.'

Parking adjudicators

Independent adjudicators were set up under the Road Traffic Act 1991.

Parking adjudicators across England and Wales received more than 47,000 appeals by motorists and vehicle owners against penalty charge notices or after their cars had been removed or clamped last year.

The majority - 40,000-plus - were in London, where 62% were allowed during 2001/2002.

Appeals are dealt with by a single adjudicator, either by a postal decision or a personal hearing, and are only challengeable via a judicial review.

One memorable case involved a belly dancer who claimed she had never received the parking ticket but remembered the incident because she was appearing at Luton Airport to entertain passengers, and had parked in the set-down area to unload her props, including her snake, which needed to be kept warm.

She won.