Tribunals And Appeals Essay, Research Paper
Tribunals make an award rather than give a judgment. They are not absolutely bound by previous decisions of the tribunal, although they may look at previous cases for assistance in making their decisions. They are however bound by decisions of courts. Appeals:Parties may appeal, usually to the High Court only on a point of law. They are also subject to the rules of natural justice. Domestic – used within professions to determine questions relating to the professional conduct of their members and are usually of a disciplinary nature.
The Bar Council has such a tribunal as does the Law Society and General Medical Council being staffed by senior members of the profession and having powers to fine, suspend or disbar a member for misconduct.
Administrative – have a more general jurisdiction, although each such tribunal is set up individually by the legislation creating the rights and duties for which the tribunal has responsibility. Each tribunal is headed by a legally qualified chairperson who sits with two independent members, one representing the respective positions of each side of the dispute (in an employment tribunal the legal chair will sit with an employer and a trade unionist). The FRANKS Report In 1957 the Franks Committee investigated the workings of tribunals. It reported that the tribunal system was likely to become an increasingly important part of the legal system, and recommended that tribunal procedures should be marked by ‘openness, fairness and impartiality.’ Openness required, where possible, hearings in public and explanations behind the decisions. Fairness entailed the adoption of clear procedures which allowed parties to know their rights, present their case fully, and be aware of the case against them. Impartiality meant that tribunals should be free or undue influence from any Government departments concerned with their subject area. The Committee also recommended the establishment of two permanent Councils on Tribunals, one for England and Wales and one for Scotland, to supervise procedures. Although a Council was set up (with a Scottish Committee), its functions are only advisor-it has little real power, and cannot reverse or even direct further consideration of individual tribunal decisions. In 1980, it put forward a report asking for further powers which were not granted. This Council reviews and reports on the constitution and workings of certain specified tribunals and is consulted before any changes to their procedural rules are made; it also considers and reports on matters referred to it concerning any tribunal. Advantages of tribunals Speed – cases come to court fairly quickly; many are dealt with within a day.
Cost – Tribunals usually do not charge fees, each party usually pays their own costs. The simpler procedures of tribunals should mean that legal representation is unnecessary, so reducing costs.
Informality – This varies between different tribunals, as a general rule, wigs are no worn, the strict rules of evidence do not apply, and attempts are made to create an un-intimidating atmosphere.
Specialisation Tribunals members already have expertise in the relevant subject area and through sitting on tribunals are able to build up a depth of knowledge of that area that judges in ordinary courts could not hope to match.
Privacy Tribunals may, in some circumstances, meet in private, so that r not obliged to have their problems aired in public.
Disadvantages Of Tribunals Lack of Openness – The fact that some tribunals are held in private can lead to suspicion about the fairness of their decisions.
Reasons for decisions are not always given, although this has been strongly recommended by the Court of Appeal.
Too Complex – The 1979 Royal Commission on Legal Services (the Benson Comm.) recommended a review of tribunal procedures, with a view to simplifying matters so that applicants could as far as possible represent themselves, yet if anything, tribunal procedures have become more legalistic. – Genns’ research appears to confirm that self- representation will be very difficult before some tribunals and therefore better legal or lay representation will become even more necessary.
Appeals: There is no absolute right to appeal from a tribunal -such rights exist only when laid down by statute; consequently there is no uniform appeals system, and some tribunals offer no appeal rights at all. Appeals when allowed to the High Court are expensive and complex.
Unavailability of legal aid – Full civil legal aid is available for only a couple of tribunals