We've Come a Long Way Since Franks – but the journey is not yet over
In the first of two articles, Bernard Quoroll, a member of the AJTC (and previously the Council on Tribunals) reflects on changes in the approach to administrative justice since the Franks report in 1957.
When I began to study law in 1967, the Franks Report1 was already 10 years old. It had been driven by the uproar following the Crichel Down case2 three years earlier, when a government department refused a farmer's request for return of land acquired compulsorily for use as a bombing range during World War II. The connection between what was arguably a case of civil service maladministration and a wide ranging review of the role of tribunals is not entirely clear. But in those days ministers still considered resigning when their civil servants made a mistake and the plight of the farmer struck a resonant chord with the public. As all governments do when they have strong public feelings to assuage, they formed a public commission and called for a report.
The Franks Committee was not primarily a legal body although it had a strong legal component. At the time it was hotly debated whether an "administrative" or "judicial" attitude should prevail in respect of the rightful place of tribunals in the landscape of redress. The administrative posture was that tribunals should continue to form part of the machinery of government. The legal contention, which won through, saw tribunals as part of the machinery of justice - "The essential point is that in all cases Parliament has deliberately provided for a decision independent of the department concerned...and the intention of Parliament to provide for the independence of tribunals is clear and unmistakable."3
The Committee in a 100-page report made wide-ranging recommendations in respect both of inquiries and tribunals. Its remit however was quite limited and not all its recommendations were adopted. The newly formed Council on Tribunals (CoT) did not get to appoint members of tribunals or review their remuneration! I guess that seemed inappropriate for an advisory body. Nor, as things have turned out 50 years later, has the Committee's view that the tribunal system has an inherent resistance to uniformity of any kind survived the relentless onslaught of new tribunals (which within 20 years would be hearing six times the number of contested civil cases coming before the High Court and the county courts combined4). We now have a new Tribunals Service, bringing together most of the high volume tribunals, although dedicated still to preserving the distinctive ethos of different jurisdictions. Acceptance in practice of the need for full independence of tribunals from government departments, actual and perceived, has had to await these most recent reforms and that journey is not yet complete.
The Franks Committee was, unsurprisingly, a child of its time. It made useful but not radical proposals for improvement. It was, if you like, only a makeover of the then current approach but it could still be said largely to have achieved its aims. It was most successful in underlining and embedding the requirement for openness, fairness and impartiality. It was less successful in developing a distinctive collegiate cadre of tribunal practitioners but that was not formally part of its remit.
The current reforms should lead to greater authority, consistency and fairness as tribunals continue more rapidly to adopt common standards for tribunal procedure, training and appraisal and the new appeal systems beds in. The establishment of a recognisable third judicial pillar alongside civil and criminal justice now looks in sight but administrative justice has features which are distinctively different from civil and criminal justice. The Leggatt Report5 and the Tribunals, Courts and Enforcement Act6 enhance the status of tribunal judges but in doing so arguably increase the potential to distance tribunal decision making further from promoting good administration. Tribunals are no longer "the Cinderellas of the judicial world"7. But as chairs become judges and adjudication becomes even more professional, it will be essential not to lose the informality which has always been a feature of many tribunals and not to lose sight of the essentially administrative context within which disputes arise. Tribunal chairs learn a great deal about what is happening in the places where the original decision was taken, sometimes more than the senior management for whom decisions taken daily are too far below their radar. Being independent and impartial does not mean that lessons learned should not be fed back at senior enough level to make a difference, especially when some of the departments concerned can in that way avoid serial mistakes in future.
The Council on Tribunals' role appears deliberately to have been constructed as an advisory one – less than the Franks Committee had in mind. This is not the place to document 50 years of detailed and conscientious work, by a body curiously described by Professor Wade as "a kind of ombudsman in the sphere of tribunals".8 Nor has the Council evolved from its primarily advisory role into one more like that of a Parliamentary Commissioner "who has legal powers of investigation and a large staff" as Professor Wade once speculated.9 It has in fact never regarded itself as an inspector or auditor – that would have been impractical then and now with such a small staff. More importantly, it might have denied it the degree of access to tribunals and their judiciary which it has enjoyed in practice.
The Council has instead sought to add value at the detailed level, commenting upon and improving legislation, using what it has learned from observing tribunals to identify weaknesses, advising on sets of procedural rules (60 in its first seven years), drafting its own reports and guides, acting as a constructive critical friend to government departments and a partner to the judicial establishment whose aims we largely share. That does not mean that we have always sat on our hands when proposals have seemed to us unfair or departments have failed to consult. Successive Annual Reports catalogue those times when the Council has chided the government of the day if it thought Franks' values were at risk. Professor D G T Williams gives examples of particular instances in his review of the first 25 years10. Year by year the Council has championed fairness and impartiality, pointing out anomalies and helping to improve legislation, sometimes with more consistency than generations of Parliamentary draftsman. It means that the Council is still the most knowledgeable and authoritative source of information about the tribunal system and how it works. It remains however a curious anomaly that neither in 1957 nor since has the Council been given a remit to conduct research – surely a concomitant of any advisory function. That could be turned to an advantage if as a new Administrative Justice and Tribunals Council (AJTC) we can develop as a true "hub of the wheel of administrative justice11" and be a reliable source of intelligence about research initiatives. That would also help us in fulfilling one of our new remits – making recommendations for research.
Alongside tribunals the Council had a specific remit for keeping statutory inquiries under review. It was and remains confined to statutory inquiries as defined in the Tribunals and Inquiries Act,12 the test being whether the inquiry or hearing is held pursuant to a duty imposed by primary or secondary legislation. It was extended to some discretionary inquiries from 1966 but in practice the Council has focused mainly on inquiries relating to land use. Determining which kinds of inquiry legitimately fall within our remit is a non-trivial task due to the labyrinthine way in which this topic has been handled in the past. It is an irony for example that the Crichel Down case which led to Franks would not have been part of the Council's remit. The Council can however point to some significant achievements especially in the earlier years. Its special report arising from the "Chalkpit" case in 196113 on the handling of evidence received after an inquiry had ended and its report a few years later on the award of costs at statutory inquiries14 are still very relevant today. The Council was specifically consulted on procedural issues following the Scott Inquiry in 1996 in relation to exports of defence equipment to Iraq. But it had no locus in relation to non-statutory inquiries generally, such as Hutton and Soham, and no real opportunity of its own volition to review whether improvements to procedures might be made. Inquiries were specifically excluded from the Leggatt review and the Act which followed made few changes by comparison with the previous situation. It remains from the Council's point of view unfinished business but we will continue to add value where we can, most recently in responding to the recent White Paper on nationally important planning inquiries15 which proposes major changes to the way that consultation with the public takes place.
So much is history. I want to argue that the landscape of administrative justice has changed dramatically in ways which could probably not have been envisaged in 1957, that it is continuing to change and that tribunal development should be looked at not just as a judicial imperative but rather within a wider social context. In consequence, the debate is not or should no longer be one about a "judicial" or an "administrative" view of the place of tribunals. That has already been well settled by Franks and Leggatt (although it can be argued that what tribunals do is a component both of good administration and fair adjudication16). Rather, we should place much greater emphasis on a consumerist approach to redress which makes user needs our first consideration. We also need a renewed emphasis on good administrative decision making and organisational learning and a recognition that reforms which mainly envisaged conflict between citizens and government departments in 1957 must take account of the increasingly more complex landscape of administrative justice in 2007 and the wider range of techniques available for dealing with disputes and complaints. Users and their needs have always been part of our remit but the message from Leggatt is that they must become more so.
In fairness to Franks, his remit was limited to the relationship between individuals and the state. The Leggatt Report and the White Paper which followed now recognise the scope for considering tribunals in a wider social context and show a refreshing willingness to take notice of the rich tapestry of actual and potential redress mechanisms becoming available. But no one has yet worked out how to direct people to them effectively or support them adequately in making best use of them. They also identified the importance of greater emphasis on a more systemic approach in a landscape which encompasses how decisions are taken by central and local government, the opportunities for resolving differences early and the role that the judiciary and those in support of them might better play in providing feedback in aid of better decisions in future. Responding to these issues is a formidable task and it will be tempting for the Tribunals Service to focus in their early years on other things. One of our roles will be to keep them on the agenda.
None of this is to downplay the importance of the tribunal reforms currently being implemented and the opportunities for improvement that they provide. An AJTC will continue to encourage and support those reforms and to be a critical friend of the Tribunals Service. But it also has a duty to ensure we do not focus only on what tribunals do. Our focus needs to be much more on the needs of those who use the system. Some of them want their day in court but many of them do not want to be there at all. Like the Health Service, we risk focusing too much of our energies on fixing something after it has been broken. We should perhaps be putting equal energy into making sure that only the most intransigent of issues come before tribunals and that when they do, the organisation making the decision in the first place learns the lessons which judicial examination can teach. Achieving it is no small task but from a consumer point of view may be more important ultimately than what judges do directly. If the lessons learned from one hearing can prevent 100 similar errors in future, consider the potential for financial savings as well as avoiding unnecessary stress.
In short we are looking forward as an AJTC to continuing to do most of what the Council has done before but the stage is set for a new and potentially more challenging agenda.
In the next edition of Adjust Bernard Quoroll will comment on changes in society since 1957, challenge the idea that the scope of administrative justice should be too narrowly defined and reflect on how an AJTC will need to raise its game if it wants to add value as the "hub of the wheel".
Notes:
1. Cmnd 218 (1957)
2. Cmd 9176 (1954)
3. Ibid 1, para.40
4. Cmnd 7648 (1979) para.15.1
5. Tribunals for Users – One System, One Service: Report of the Review of Tribunals (TSO, 2001)
6. Tribunals, Courts and Enforcement Act 2007, c.15
7. H W R Wade The Council on Tribunals [1960] Public Law p.353
8. H W R Wade Administrative Law 2nd Edition, 1967 p.251
9. Ibid 8, p.252
10. D G T Williams The Council on Tribunals: The First Twenty-Five Years [1984] Public Law p.85
11. Ibid 5, para.7.49
12. Tribunals and Inquiries Act 1992, c.53
13. Annual Report Council on Tribunals 1961, App.D
14. Cmnd 2471 (1964)
15. Planning for a Sustainable Future Cm 7120 (2007)
16. K H Hendry The Tasks of Tribunals: Some Thoughts (1982) 1 Civil Justice Quarterly 253