The Council on Tribunals

The best established of the bodies which keep the administrative justice system under review is the Council on Tribunals. Created in 1959 under the authority of the Tri­bunals and Inquiries Act 1958, the Council has the statutory responsibility to advise and report to the Lord Chancellor. Its primary function is to consider and keep under review the work of the tribunals and inquiry systems under its jurisdiction; to com­ment on drafts of procedural regulations, on which the Council must be consulted; and to deal with such other matters as may be referred to it.

It has over the years interpreted its remit broadly, and indeed government depart­ments have used it more broadly than this. For example, the Council is regularly consulted on proposals to establish new tribunals or to introduce changes to existing tribunals, for example by changing their procedural rules or by expanding the range of cases which may go before the tribunal.

In addition the Council has prepared a number of reports relating to general issues about the operation of tribunals and inquiries: for example, in 1991 it pro­duced a major analysis of the procedural rules that might be adopted by tribunal systems. In 1997 it produced a report on the independence of tribunals, reasserting the importance of this fundamental principle in the operation of tribunals. In 2002 it produced the first Framework of Standards for Tribunals.

A particular feature of the modus operandi of the Council is that it has, in the vast majority of the tribunal systems under its authority, a statutory right to attend hear­ings. Members of the Council make around 120 visits a year to different tribunals and inquiries in all parts of the country. Members produce reports for consideration by the Council on what they have seen, which provide a powerful source of information about both good and bad practice in the system.

As a result of these visits many items of concern to the Council have emerged, which have been translated into proposals for change, for example:

• the need for training of tribunal chairmen and members;

• the importance of the role of the clerk and administrative support generally in ensuring the smooth running of tribunals;

• the need for an adequate level of resource to enable the work of the tribunals to be done effectively.

The Annual Reports of the Council provided a rich repository not just of informa­tion about developments in the administrative justice system, but also of the prin­ciples and practices which should be adopted in that system. The obvious limitation of the work of the Council is implicit in its name; its focus is limited to the tribunals and inquiry system over which it has been given a supervisory function. Nevertheless, the Leggatt review of tribunals saw the Council as a key part of the administrative justice system and recommended that its role should be enhanced.

The British and Irish Ombudsmen's Association (BIOA)

Ombudsmen are another very important part of the administrative justice system. As this mechanism for dispute resolution has developed, BIOA was founded in 1995. Its principal purpose is to ensure that only those bodies that subscribe to certain procedural standards use the label 'ombudsman'. In particular, ensuring that ombudsmen in the private sector of the economy, who were privately financed, are truly independent of their paymasters, is an important function for BIOA. It has also undertaken other activity, such as developing principles for the training and pro­cedures to be adopted by individual ombudsman systems. One feature particularly worthy of note—and which it is surprising does not exist in other parts of the English legal system—is the link with our neighbouring common law jurisdiction, Ireland.

Need for a new overview body?

There remain other areas of the administrative justice system which fall outside the remit either of the Council on Tribunals or the BIOA. For this reason there have been calls for some more wide-ranging body or institute which might keep the administrative justice system, taken as a whole, under review. For example in Australia there is an Australian Institute of Administrative Law, with a wide membership drawn from throughout that great continent.

In the British context, there have been similar calls for the creation of a body which might take on the role of looking at the administrative justice system in the holistic sense indicated above; to explore the extent to which there may be gaps in provision or over-provision; to argue for the provision of sound statistical information to provide proper management information about the development of administrative justice and so on.

More specifically a number of developments are occurring which, in the context of individual tribunals or other dispute resolving fora, may seem justifiable but which need to be seen in the round. For example, there is considerable pressure in a number of tribunal systems to move from three-person to one-person tribunals; there is pressure to do as much decision-taking as possible on the papers only without hear­ings; there are very considerable resource pressures which have led to the reduction or even withdrawal of essential administrative services, such as the provision of clerks; provision of training is still very patchy; the use of accommodation for tribunals and other fora is often less efficient than it should be.

The Human Rights Act 1998 and the Freedom of Information Act 2000 have considerable potential for making an impact across the administrative justice system.

These are the sorts of structural issue that should be kept under general review, which under present arrangements does not happen. The fact that the Lord Chancel­lor's Department is now asserting much greater leadership in this area is a very important new development. But, as with the Select Committee on the Parliamentary Commissioner for Administration, it would also help if a Select Committee of the House of Commons were to take a more specific interest in the structure and workings of the administrative justice system as a whole.