The Modernised Tribunal Service
THE MODERNISED TRIBUNAL SERVICE AFTER LEGGATT
Since the Review of Tribunals by Sir Andrew Leggatt the government has grasped the nettle and under the direction of Lord Newton of Braintree intends to create a unified tribunal service.
The core objective is to improve the delivery of legal services and the system of justice to the myriad of tribunals (statutory and otherwise) under the administration of the government. This dovetails with attempts by government to modernise both the civil and criminal justice system, and continues its approach of increasing accessibility to tribunals, raising standards and improving the efficiency and speed of the administration.
The Lord Chancellor has embarked purposefully and with some considerable speed in trying to bring about this long overdue reform. The scope of the Tribunal Service (the Service) is however largely confined to tribunals within the government service but should serve as important guidance to professional and regulatory environments that live outside it.
By creating the Service as an independent feature of the justice system accountable to the Lord Chancellor, it brings together tribunals from across central government with the opportunity of smaller less prominent tribunals joining were appropriate. The architecture proposed is designed to be both flexible and to underpin the independence of the tribunals who sit very close to the government executive departments and limbs of the executive over which they have judicial power. What has been described as a ‘difficult cultural shift’ is made the easier for the Service to be robustly independent and lie within the distinct sphere of the Lord Chancellor’s department.
As part of its reforms the Council has produced revised draft Model Rules and has invited comment from interested parties. These draft rules can be found at the following link: http://www.council-on-tribunals.gov.uk/files/mrdraft.pdf. A model set of rules can prove an invaluable starting point for tribunals of great diversity. The danger is of course that by wholesale adoption the individual characteristics of each tribunal which afford the flexibility of those tribunals to adapt to the particular environments which they regulate may be lost.
There are important Model Rules which every tribunal may wish to adopt. The rules introduce a concept of an “overriding objective” to deal with cases fairly and justly which includes the direct importation of principles of proportionality, informality, flexibility of the proceedings, placing parties on an equal footing in the presentation of their case, the utilisation of the tribunal’s special expertise effectively and, the avoidance as far as possible, of delay so far as is compatible with the proper consideration of the issues. The proposed overriding objective is a laudable starting point and one which many other tribunals in regulatory and professional environments may wish to adopt. It directly imports concepts of administrative law and it obliges tribunals to have regard to core objectives of their role both at the outset and throughout the proceedings they determine.
Other features provide important templates that include procedures to deal with the start of proceedings, the management powers of tribunals in the course of the proceedings and the management of evidence and expert evidence, the conduct of the hearings and decisions including costs, appeals and other miscellaneous features (e.g. the service of documents).
The Model Rules consolidate what might be described as best practice in the management and conduct of tribunal proceedings. They are detailed but necessarily so, and other professional and regulatory bodies where possible would be well advised to benchmark their own rules against them. They offer a standard not a prescription. The Model Rules are not intended as a determination to prescribe ‘one size fits all’ but rather an attempt to enable the government to set out standards against which the tribunals under their supervision may seek equivalence (and an invaluable opportunity for external tribunals to benchmark their own rules and procedures).
Many tribunals and regulatory bodies have already performed a benchmarking exercise in relation to the Human Rights Act 1998. Some will have engaged at that time in wider and more comprehensive housekeeping exercises for rules that have lain undisturbed for many years. Some bodies through no fault of their own have become hostages of the statutory processes to which they are subject. The Service may wish to consider the extent to which other bodies currently outside the Service’s operation and the subject of direct statutory supervision by parliament can be brought within, formally engaged by or influenced by the Service’s practice and the proposed Model Rules.
One of the striking features of regulatory and disciplinary tribunals is that they provide a flexible and uniquely tailored judicial facility for particular specialised environments. The proposed Model Rules are rightly cautious about prescription as a tool so as not to unduly dilute this essential and important benefit that tribunals can provide. They can also greatly influence and provide guidance to those tribunals who lie outside the Service’s remit. It is to be hoped that where possible the centralised publication of tribunal decisions, practice directions and other guidance will ensure that the Model Rules will evolve and attune themselves to the particular environments in which they are operated, being it is hoped of mutual benefit to each other.
Model Rules: Annex
11. An Annex in the Model Rules provides a checklist of matters to be considered when preparing legislation establishing a tribunal or other adjudicative body. Those secretariats involved in the operation of tribunals, whether within the government service or outside, should take this opportunity to review their existing regulatory structures. The Annex helpfully sets out detailed rule making provisions that deal with matters customarily included in the drafting of legislation, the constitution and operation of tribunals and other rule making provisions.
Framework for Standards
Sir Andrew Leggatt set out core objectives in his Framework of Standards for tribunals published by the Council on Tribunals last year. The objective of the framework is to:
(i) Provide a useful template for the Council to use when it is considering the constitution working of tribunals and when providing feedback to tribunals;
(ii) Making more transparent to tribunals and government departments the Council’s priorities and concerns;
(iii) Provide a tool for government and tribunals themselves to assist them in reviewing their performance.
(iv) Provide guidance for new tribunals; and
(v) To promote best practice.
These high level standards should be a matter of some attention to all regulatory and disciplinary bodies outside the tribunal service as it will enable them to benchmark their own practices against the current best practice within the Service and to render their tribunals less susceptible to appeal or review by the Administrative Court. Adoption of standards increases the constitutional and operational efficiency of tribunals, and such bodies would do well to look to the framework of standards for tribunals as a useful guide for the day to day operation of secretariats and rule review.
The proliferation of tribunals and regulatory and disciplinary adjudicatory bodies needs a cornerstone. Sir Andrew Leggatt and the Council on Tribunals efforts have gone a long way to provide that both within the government and informally beyond. Tribunals wrestle on a day to day basis with the complexities of their own regulatory and disciplinary environments and those operating them can easily lose focus on some of the principal tenets that govern their purpose and operation. These consultative documents are important tools to refocus on core issues for the operation of such tribunals and regular review of best practice. If ignored, those appearing before such tribunals may be expected to identify lacunae within the tribunal process which proliferate appeals or result in unnecessary costs being incurred in the Administrative Court. The proposed Model Rules and standards provide a safety net to those who operate the tribunal secretariats and the members of those tribunals. They also avoid the embarrassing process of light being shined into dark corners of a defective decision or process in the Administrative Court.
There is little excuse for these bodies to effect change where necessary and ensure that the tribunals and regulatory environments over which they have supervision operate fairly, effectively and transparently. We are indebted to Sir Andrew and those that follow him to have undertaken this Herculean task with clarity and common sense.