A people's court

Tribunals are the most likely place that the man in the street experiences the judicial process.

Covering a range of matters such as employment, social security benefits, education, health, tax, agriculture, criminal injuries compensation, immigration and asylum, rents, and parking fines, they are central features of civil and administrative justice that impact on the lives of ordinary people.

The common theme is that appellants should be able to present their own case effectively to a tribunal that has special expertise in the matter under consideration. The tribunal takes an inquisitorial role in a structured but informal setting in sorting things out.

The Leggatt report published in 2001 '“ Tribunals for Users '“ One System, One Service '“ advocated the establishment of a single, overarching structure for the operation of the tribunals system to replace the plethora of tribunals that existed. The tribunals worked in isolation, with (broadly speaking) the 'Party v Party' tribunals (such as the employment tribunals) having a more adversarial role than the 'Citizen v State' tribunals (such as the social security tribunals).

The Tribunals Service was formed in April 2006 to provide administrative support to 29 different tribunals. In 2007-8 it received 613,000 applications and 90 per cent were handled within the three largest jurisdictions '“ social security, employment and asylum /immigration.

Obvious tensions

The Tribunals Service describes its purpose as providing a responsive and efficient tribunals administration, contributing to the quality of decision making across government departments, reforming the tribunals justice system for the benefit of the wider public and promoting and protecting the independence of the judiciary. There are obvious tensions within these declared aims.

A recent article by Carine Patry Hoskins comprehensively set out the new tribunal structure brought about by the implementation of the Tribunals, Courts and Enforcement Act 2007 (see 'Under a Watchful Eye', Solicitors Journal, 3 February 2009).

The Act, among many other things, provides for the designation of the legal member of the tribunal as a tribunal judge.

It has been cogently argued by various voluntary organisations active in this field (notably the Child Poverty Action Group) that the more formal procedural rules and the appearance of 'judges' in the tribunal system is at variance with the objectives of informality and enabling appellants to present their own case. The appearance is one of greater formality and, consequently, one that is more intimidating.

And this may prove to be true, especially if the judge is prone to the attacks of 'judge-itis' that are known to afflict all of us from time to time.

Independence

The argument put forward by HHJ Martin, President of the Social Entitlement Chamber, is that the reforms secure the independence of the tribunals '“ they are no longer seen as adjuncts to the government departments from which they sprung. The development of a discrete set of Tribunal Procedure Rules, which also came into force on 3 November 2008, attempts to be even-handed between appellants and respondents and is something that has not always been readily obvious in the 'old' procedures where there were often more burdens and sanctions on appellants than on respondents.

In some tribunals it is difficult, if not impossible, for appellants to represent themselves adequately. The mental health jurisdiction and various asylum tribunals are cases in point (though these are areas where public funding is available).

The First-tier Tribunal (Social Entitlement Chamber) Rules 2008 and the First-tier Tribunal (Health, Education and Social Care Chamber) Rules 2008 each contain an overriding objective that is similar to that in the Civil Procedure Rules 1998.

The aim is to deal with cases fairly and justly, which includes considering proportionality, avoiding unnecessary formality and ensuring that parties participate fully. The parties themselves have a duty to help the tribunal to further the overriding objective and to co-operate with the tribunal generally.

Put simply, the tribunal will have more teeth and these can be used to bite respondents in appropriate cases.

Just and equal?

The Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (as amended) have for some time had an overriding objective requiring cases to be dealt with justly and requiring consideration of equal footing.

Increasingly tribunals seek to give the user the information about what to expect from the experience. For example, the Criminal Injuries Compensation Appeals Panel has recently produced a DVD step-by-step guide of what to expect at tribunal that is to be sent to all those attending an oral hearing.

It is a matter of balance. On the one hand, the Act puts tribunal judges and members on a constitutional par with the judiciary, with the consequent dangers thereof and the implications of remoteness. On the other hand, the fundamental purpose of the whole enterprise is to impact on the quality of the decision making where the citizen seeks redress against a decision by an organisation of greater power and with bigger resources '“ whether it is the state, the council, or an employer.

Better decision making results in a fairer outcome for all, including the citizen. Now the question is whether and how well these aims will be met.