Tribunal Reform: Proportionate Dispute Resolution and the Pursuit of Administrative Justice
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00618.x |
| Published date | 01 November 2006 |
| Author | Michael Adler |
| Date | 01 November 2006 |
REPORTS
Tribunal Reform: Proportionate Dispute Resolution and
the Pursuit of Administrative Justice
Michael Adler
n
The article considers some unresolved policy choices associated with the implementationof ‘pro-
portionate dispute resolution’, one of the most interesting ideas in the Department of Constitu-
tional A¡airs’White PaperTransforming PublicServices: Complaints,RedressandTribunals, published in
2004. It attempts to put the White Paper into context by tracing the Government’s concern
with tribunal reform over the last 50 years. It brie£y compares the Franks Report, published
in 1957, with the Leggatt Report, published in 2001, a nd outlines the steps that led to the
publication, three years later, of the White Paper. It then analyses the similarities and di¡erences
in the approaches to reform taken by the Leggatt Report and the White Paper. The article
focuses on the pri nciple of ‘proportionatedispute resolution’, the idea that the ways in which cases
are dealt with should re£ect the natureof the dispute and whatthe person in dispute with a public
body wishes to achieve.Seven policy options are considered,al lof which hold out the prospect of
enhancing administrative justice, either by reducing the incidence of disputes or by handling
them more e¡ectively. Theyare then assess ed in terms of howwell they are likely to do so.
The main aim of this article is to consider some of the unresolved policy choices
associated with the implementation of ‘proportionate dispute resolution’, one of
the most interesting ideas in the Department of Constitutional A¡airs’ White
PaperTransforming Public Services: Complaints, Redress andTribunals, which was pub-
lished in 2004 but has not yet resulted in legislation. However, before doing so,
the article attempts to put the White Paper into context by tracing the Govern-
ment’s concern with tribunal reform over the last 50 years. It brie£y compares the
Franks Report, whichwas published in 1957, with the Leggatt Report, whichwas
published in 2001, and outlines the steps that led to the publication, three years
later, of the White Paper. It then analyses the similarities and di¡erences in the
approaches to reform taken by the Leggatt Report and the White Paper.
This comparison is not intended to be exhaustive or de¢nitive and many
important issues, e.g. the independence of tribunals from their ‘sponsoring
departments’
1
and the role of the Council on Tribunals, which supervises
n
Professor of Socio-Legal Studies in the School of Social and Political Studies at the University of
Edinburgh. An earlier version of this article was presented to the International Tribunals Workshop
held at the Centre for Internationaland Public Law,Australian National University, Canberra on 5th
April 2006.The author is very grateful to Robin Creyke, the workshop organiser,for inviting him to
take part.He would also like to thankTonyBradley,Jackie Gulland, Martin Partington, PaulStockton,
RichardWh itecross, NickWikeley and two anonymous referees for this journal, for their extremely
helpful comments on earlier drafts of this article.The usual disclaimers apply.
1 Because tribu nal rules and procedures were frequently drawn upby the sponsori ngdepartment,
the independence of tribunals was frequently called into que stion. For a fuller di scussion, see p. 962.
r2006 The Author. Journal Compilation r2006 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(6)MLR 958^985
tribunals and reviews their operation, are mentioned only in passing.
2
This is
because the article focuses on the principle of ‘proportionate dispute resolution’,
the idea that the ways in whichcases are dealt with should re£ect the nature of the
dispute and what the person in dispute with a government department or public
body wishes toachieve. Each ofthe seven policy options considered in the article
holds out theprospect of enhancing administrative justice, either by reducing the
incidence of disputes or by handling them more e¡ectively, and is assessed in
terms of how well it is likely to do so. The article is primarily intended as, and
should therefore be seen as, an attempt to consider some unresolved policy issues
relatingto tribunal reform rather than as an original contribution to the academic
literature on modes of dispute resolution.
THE HISTORY OF TRIBUNAL REFORM
There have been two major reviews of tribunals in the last 50 years. In 1955, the
Conservative Lord Chancellor, Viscount Kilmuir, invited Sir Oliver Franks (as he
then was) to chair a Committee to consider, as one part of its remit,‘the constitu-
tion and working of tribunals, other than the ordinary courts of law’. The Com-
mittee reported in 1957,
3
concluding that tribunals were part of the ‘machinery of
adjudication rather than partof the machinery of administration’.Three character-
istics ^ ‘openness, fairness and impartiality’ ^ were identi¢ed as the hallmarks of
good tribunals and a number of recommendations were made with the object of
ensuring that these principles would, in general, govern the constitution and pro-
cedure of tribunals. Publication of the Report led to the passage of theTribunals
and Inquiries Act 1958 and the establishment of the Council onTribunals, which
was give n statutory responsibility for keeping under review those tribunals that
were placed under its jurisdiction.
In the period following the publicationof the Franks Report, there was aphe-
nomenal growth in the number of tribunals ^ according to Harlow and Rawl-
ings, ‘[t]hey just growed like Topsy’
4
. This happened in a piecemeal fashion, in
parallel with the development of the welfare state and the growth of state regula-
tion, to meet the political and policy needs of ‘sponsoring departments’.
Although the Counci l on Trib unals attempted to resist the proliferation of new
tribunals, to encourage a degree of procedural standardisation and to raise stan-
dards of tribunal decision-making, the resources available to it have been very
limited. Over the years, it has nothad a good press ^ in his1975 Hamlyn Lectures,
Harry Street concluded that, although it had done as much as could be expected
from abody of part-timers witha very small budget, it wasobvious thatit did not
2 A fuller account of tribunal reform and the proposals in White Paper can be found in M. Adler,
‘Waitingin the Wings:The Leggatt Report, theWh ite Paper and the Reformof Tribunals’ (2006)
13( 2) J SSL 73.
3 See Franks Committee, Report of the Committee on Tribunals and Inquiries, Cmnd. 218 (London:
HMSO,1957).
4 C. Harlow a nd R. Rawlings, Law and Administration (London, Edinburgh and Dublin: Butter-
worths,2
nd
edition,1997) at 456.
Michael Adler
959
r2006 The Author. Journal Compilation r2006 The Modern Law ReviewLimited.
(2006) 69(6)MLR 958^985
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