Tribunals and Inquires in UK Law

Secondly, there is no presumption that the procedure will necessarily follow the adversarial model which (for the time-being at least) is the hallmark of civil court procedures. However, there is no single approach suitable for all tribunals. For example, in a major case in the tax or lands tribunals, the sums may be as great, and the issues as complex, as in any case in the High Court, and the procedure will be modelled accordingly.

The first is as to the weight to be given to such evidence in future cases. Tribunals are advised that, where there is a "clear, detailed and reasoned linguistic analysis" leading to "an opinion expressed in terms of certainty or near certainty", then "little more" is required to support a conclusion.

All I would say is that much water has passed under the fridges since 1929. The dictum may be correct when confined to tribunals dealing with minor matters where the rules may properly exclude legal representation. But the dictum does not apply to tribunals dealing with matters which affect a man's reputation or livelihood or any matters of serious import. Natural justice then requires that he can be defended, if he wishes, by counsel or solicitor.

In exercising that discretion, as in exercising any other administrative function, they owe a constitutional duty to perform it fairly and honestly and to the best of their ability, as Lord Greene M.R. pointed out in his neglected but luminous analysis of the quasi-judicial and administrative functions of a Minister as confirming authority of a compulsory purchase order made by a local authority which is to be found in B. Johnson & Co. (Builders) Ltd. v. Minister of Health [1947] 2 All E.R. 395 at pp.399, 400.

Discretion in making administrative decisions is conferred upon a Minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head.

Once he has reached his decision he must be prepared to disclose his reasons for it, because the Tribunals and Inquiries Act 1971 so requires; but he is, in my view, under no obligation to disclose to objectors and give them an opportunity of commenting on advice, expert or otherwise, which he receives from his Department in the course of making up his mind.

As Professor Paul Craig has shown (see e.g. "The Nature of Reasonableness" (2013) 66 CLP 131), both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker's view depending on the context.