Whether a tribunal operates effectively will necessarily depend on its member- ship and their ability to deal with the powers and procedures in question. The tribunal system permits the appointment of members by the relevant minister in the government department concerned. It has been seen previously that, with the exception of Social Security Appeal Tribunals, in some instances the relevant minister is required to appoint tribunal chairmen from a panel maintained by the Lord Chancellor, which is usually an indication that such chairmen are to be legally qualified. Legal qualifications are regarded as being particularly relevant for the chairmen of appellate tribunals. As far as general tribunal membership is concerned, the relevant statute constituting the tribunal will usually specify desirable qualifications. In practice, most tribunals comprise a chairman and two other lay members with assistance from a clerk.
5.7.1 The presidential system in tribunals
The position of the tribunal clerk is often a matter of concern. In its Annual Report for 1981–82, the Council on Tribunals reported on a complaint concern- ing the independence of the former National Insurance Local Tribunals. The complainant thought it wrong that anyone wishing to raise a matter with the tri- bunal by telephone had to speak to the department as the tribunal appeared to have no independent staff working in independent premises directly approach- able by a claimant or representative. Although recognising the need for an employee of the department to act as tribunal clerk in some instances, eg where the volume of work did not justify the tribunal employing its own full-time staff, the Council ‘entirely accepted that it would be desirable for tribunals to be administered completely independently from Government departments’.
Although departmental administrative arrangements for tribunals are closely monitored by the Council to ensure that their independence is not compro- mised, there is one measure which is probably more effective than most: the
‘presidential’ system. This system exists in some areas, notably the Industrial, Social Security Appeal and Immigration Tribunals, and depends on a president who is responsible for the operation of the tribunals in question and stands between the tribunal and the responsible department. Because it is the president to whom reference is made for most purposes of tribunal operation, the system, according to the Council on Tribunals, ‘fosters a desirable spirit of indepen- dence and properly emphasises a feeling of separation between the tribunals and the administration of the responsible Government department’.
5.7.2 Openness in tribunal procedure
The requirement of ‘openness’ emphasised by the Franks Report provides the basis for the general rule that tribunal proceedings are in public. There are
notable exceptions, eg in the case of the Mental Health Review Tribunal, although it is general practice in most tribunals to read the evidence prior to the hearing so that there is not always the same public airing of evidence as in a court of law. Furthermore, it is generally the case that tribunals do not follow strict rules of evidence observed by the courts, eg so that ‘hearsay’ evidence may be admitted. Although there are differences in the rules of procedure for the various tribunals, one fairly typical example of procedural flexibility enjoyed by tribunals comes from the Industrial Tribunals: the tribunal conducts the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings. It seeks to avoid formality in its proceedings and is not bound by an enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law.
Very largely, therefore, the procedure before the tribunal will be at the dis- cretion of the chairman although, as will be seen in Chapter 10, this does not absolve him from observing the rules of natural justice. These common law rules would, for example, require a tribunal chairman to disclose most docu- ments submitted by one of the parties to the proceedings, to the other party.
Failure to observe this and the other requirements of natural justice would probably lead to a quashing of the tribunal’s decision.
5.7.3 Tribunal representation
Parties to most tribunal proceedings are able to rely on representation whether in the form of legal or lay representation. Many welfare tribunals such as the Social Security Appeal Tribunals see a great deal of representation by the vari- ous voluntary agencies whose expertise before these tribunals is considerable.
Indeed, there are those who would argue that lawyers are out of place in tri- bunals and tend to introduce a measure of formality and technicality which is alien to administrative tribunals.
5.7.4 Legal aid, advice and assistance
In order to prepare a case for presentation to a tribunal it may be possible to rely on the free services of one of the voluntary agencies. In practice, many cases before the Industrial Tribunals are prepared and presented by officers of work- ers’ trade unions as a service to the membership. In other cases where such assistance is not available to parties to tribunal proceedings legal advice and assistance is available from solicitors in the preparation of a case. However, legal aid to cover further expenses in pursuing or defending a case before a tri- bunal is not available except before the Lands Tribunal, the Employment Appeal Tribunal and the Commons Commissioners. This latter tribunal deals with disputes about the designation of land as common land. Assistance by way of representation may also be available before the Mental Health Review
INTRODUCTION TOADMINISTRATIVELAW
Tribunals. This matter of legal aid was dealt with by the Lord Chancellor’s Advisory Committee on Legal Aid in 1974. Although it was recognised that dif- ferent persons have different needs before different tribunals, the Committee concluded that financial help should be extended to those voluntary agencies already operating in the tribunal system. Nevertheless, it was also recognised that legal aid before tribunals would lead to too much formality in their pro- ceedings and the possibility that the proceedings would become too lengthy.
The Council on Tribunals has also added its weight to the controversy in calling for legal aid to be made available before those tribunals under its supervision where legal representation is available.
5.7.5 Legal immunity for tribunal proceedings
Where judicial proceedings are being conducted in a court of law the judges enjoy an immunity from legal liability in tort. In other words, they cannot be liable for civil wrongs such as libel and slander, a matter which is dealt with again in Chapter 14. One of the big problems in the present context is whether this immunity extends to and protects the members of tribunals. In one of the leading cases, Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson (1892), the court was concerned with a case of slander in respect of words spoken at a meeting of London County Council while it was acting as a licensing body for music and dancing licences. The defendant, Parkinson, claimed that his allegedly slanderous statements were protected by absolute privilege of the sort accorded to judges in judicial proceedings. However, it was decided that absolute privilege did not apply because the licensing body did not have the characteristics of a court even though it was obliged sometimes to act judicially. As a result Parkinson, it was decided, could rely only on ‘qualified’
privilege so that he could claim immunity from tortious liability for slander if he could prove that the offending words were spoken without malice.
While tribunals are obliged to act judicially, there must be some doubt about the legal immunity of their membership. This doubt is emphasised in relation to proceedings for contempt of court where there is a failure to comply with some order or some interference with the functioning of a court. One important aspect of the law relating to contempt permits an order for committal for con- tempt to be made by a Divisional Court of the Queen’s Bench Division (part of the High Court) where the contempt is committed in connection with proceed- ings in an ‘inferior’ court. It was decided in Attorney General v British Broadcasting Corporation (1981) that a local valuation court did not come within this description. As a result, it may now be the case that only those tribunals which are described as ‘courts’ in their statutory definition will be regarded as deserving immunity in certain areas of tortious liability and as being within the care of the Queen’s Bench Division for the punishment of contempt.
5.7.6 Precedent in tribunals
One final area of interest in this context of procedure and organisation concerns precedent. By means of judicial precedent the common law has been developed through a system which requires a court to follow a decision of a court above it where the facts are similar. In theory there is no similar requirement for tri- bunals although in practice a system of precedent has developed in most cases.
In particular, where there is an hierarchy of tribunals culminating with an appeal tribunal as with the Social Security Commissioners and the Immigration Appeal Tribunal, the lower tribunals will follow similar decisions of the appeal tribunals. However, this system does depend on an effective publication of sig- nificant previous decisions.