Tribunals and Informal Justice
| Published date | 01 May 1993 |
| Date | 01 May 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02680.x |
May
19931
Tribunals
and
Informal Justice
Tribunals and Informal Justice
Hazel Genn
*
Introduction
This article has developed out of an empirical study of the procedures, decision-
making processes and outcomes in four different types
of
informal tribunals dealing
with welfare benefits, immigration disputes, employment disputes and detention
under mental health legislation.' A central objective of the study was to assess the
impact of representation on tribunal decision-making and outcomes, and, within
this context, to consider whether procedural informality represents a benefit or
potential trap for tribunal applicants. The assessment was carried out on the basis
of quantitative analysis of
4000
tribunal case files, observation of
500
tribunal
hearings, and interviews carried out with tribunal chairs and members, legal and
lay representative, presenting officers and .appellants to three of the four tribunals.2
Appellants were interviewed at three stages in the tribunal process: before their
hearing; after their hearing and before the decision; and after they had received
their decision.
The research details the activities of representatives and their effect on the outcome
of informal hearings, the approach of tribunals to procedure and decision-making
,
and the behaviour of appellants at tribunal hearings. By looking at the dynamics
of informal legal procedures, and attempting to understand the needs and competen-
cies of those who bring and those who hear tribunal cases, it is possible to highlight
some of the inherent difficulties in designing informal alternatives to traditional courts
that satisfy the need for accessibility and simplicty
,
whilst ensuring the delivery
of justice
-
especially for the poor and disadvantaged.
Tribunals and Informal Justice
Informal tribunals that review administrative decisions and adjudicate
on
disputes
between individuals have been a part of the British system
of
civil justice for some
time.3 Their popularity with policy-makers, at least, has led to a remarkable
proliferation
in
the last
50
years, and currently tribunals
in
the
UK
hear over a quarter
of a million cases annually, representing some six times the number of contested
civil cases disposed of at trial before the High Court and County Courts t~gether.~
New tribunals are being created all the time.5 Such tribunals have historically been
viewed as cheap, non-technical substitutes for the ordinary courts for a wide range
of grievances and disputes, in which parties can initiate actions without cost or fuss.
*Faculty
of
Laws, Queen Mary and Westfield College, University of London.
1
2
3
4
5
H. Genn and
Y.
Genn,
?he
Eflectiveness ofRepresentution at Tribunals,
Lord Chancellor's Department
(1989).
Interviews were not carried out with patients bringing cases before Mental Health Review Tribunals.
Although early forms
of
tribunals were in existence in Tudor times, the origins of the modern tribunal
were established at the beginning
of
the 20th century.
Council on Tribunals,
Zhe Annual Report
of
the Council
on
Tribunals for
1990/9I.
cf the new Disability Appeal Tribunals and the Child Support Appeal Tribunals.
0
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1993
(MLR
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[Vol.
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Tribunals in the
UK
have been largely overlooked by scholars concerned with
developments in informal justice, who have tended to focus on small claims
procedures, conciliation, mediation and arbitration.‘j This omission may be because
the history of tribunals predates the contemporary trend towards informali~m,~ and
because tribunals do not represent ‘alternatives’ to courts, unlike, for example, some
small claims procedures and arbitration hearings. Tribunals are the only mechanism
provided by Parliament for the resolution of certain grievances against the State,
and for some specific disputes between individuals. They are the result of deliberate
choice, and in the early days
of
the Welfare State, at least, it has been argueds that
this choice was underpinned by philosophical as well as practical considerations.
Tribunals ought, however, to be of interest to those who study alternative dispute
resolution mechanisms. They display many of the characteristics welcomed by
proponents
of
informalism, and some of the historical and modern justifications
for the creation of tribunals rest on presumed advantages over ordinary courts which
echo the claims made for ADR and criticisms of conventional court adjudication.
Defining Tribunals
In the
UK
there are about
50
different types of tribunals and some
2000
tribunals
altogether. Tribunals are supervised on a general basis by the Council on Tribunals,
but there is no common procedure followed by these bodies, no general appeal process
or appellate body. Some tribunals have lay members, others have specialist qualifi-
cations. Some tribunals act in a strictly judicial fashion, while others look more
broadly at policy considerations. It is, in fact, impossible to provide a simple definition
of a tribunal. The label is given to many different kinds of bodies with widely differing
functions, and covering a vast range of subject areas including private as well as
public law issues.
The four tribunals included in the study from which this paper has developed
are, in effect,
court- substitute^.^
They do not have responsibility for making
regulations or devising policy, but are required to act as informal courts, reviewing
administrative decisions or adjudicating between disputing parties. There are great
differences between tribunals
in
the degree of informality to be found in proceedings,
and in their function. SSATs and hearings before immigration adjudicators, for
example, provide
a
first tier of appeal from administrative decisions. Industrial
tribunals, on the other hand, adjudicate at first instance on disputes between employers
and employees. They are not concerned with administrative decision-making
,
but
with disputes between private parties. There are also many differences in the
composition of tribunals. SSATs and industrial tribunals are composed of a legal
6
An exception is
the
work by Lempert and Monsma on Housing Eviction Boards in Hawaii which
resemble administrative tribunals.
See,
for example, R. Lempert, ‘The Dynamics of Informal Procedure:
The Case of a Public Housing Eviction Board’ (1989) 23
Law
&
Society Rev
347;
R.
Lempert and
K.
Monsma, ‘Laywers and Informal Justice: The Case of a Public Housing Eviction Board’ (1988)
51 Law
&
Contemporary Problems
135;
K.
Monsma and R. Lempert, ‘The Value of Counsel: 20
Years
of Representation Before a Public Housing Eviction Board’ (1992)
Law
&
Sociefy Rev,
vol26,
no 3,
p 627.
cf R.E. Wraith and P.G. Hutchesson,
Administrative Tribunals
(London: Allen
&
Unwin, 1973) for
a detailed history of
the
development of tribunals.
eg
Wraith and Hutchesson,
op
cit;
B. Abel-Smith and R. Stevens,
In
Search
ofJustice
(London: Allen
Lane, 1968).
cf Abel-Smith and Stevens,
op
cit,
for a useful classification of tribunals.
7
8
9
394
0
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1993
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