Tribunals and courts

There is some debate as to whether tribunals are merely part of the machinery of administration of particular projects, or whether their function is the distinct one of adjudication. The Franks Committee favoured the latter view, but others have disagreed and have emphasised the administrative role of such bodies. Parliament initiated various projects and schemes, and included within those projects specialist tribunals to deal with the problems that they inevitably generated. On that basis, it is suggested that tribunals are merely adjuncts to the parent project and that this, therefore, defines their role as more administrative than adjudicatory.

If the foregoing has suggested the theoretical possibility of distinguishing courts and tribunals in relation to their administrative or adjudicatory role, in practice it is difficult to implement such a distinction, for the reason that the members of tribunals may be, and usually are, acting in a judicial capacity. See Pickering v Liverpool Daily Post and Echo Newspapers in which it was held that a mental health review tribunal was a court whose proceedings were subject to the law of contempt. Although a newspaper was entitled to publish the fact that a named person had made an application to the tribunal, together with the date of the hearing and its decision, it wasnot allowed to publish the reasons for the decision or any conditions applied.

If the precise distinction between tribunals and courts is a matter of uncertainty, what is certain is that tribunals are inferior to the normal courts. One of the main purposes of the tribunal system is to prevent the ordinary courts of law from being overburdened by cases, but tribunals are still subject to judicial review on the basis of breach of natural justice, or where it acts in an ultra vires manner, or, indeed, where it goes wrong in relation to the application of the law when deciding cases.

In addition to the control of the courts, tribunals are also subject to the supervision of the Council on Tribunals, which was originally established under the Tribunals and Inquiries Act 1958, as subsequently amended by the Tribunals and Inquiries Acts 1971 and 1992, the latter of which is the current legislation. Members of the Council are appointed by the Lord Chancellor and their role is to keep the general operation of the system under review.

In May 2000, Lord Irvine LC appointed High Court judge Sir Andrew Leggatt to review the current operation of the tribunal system as a whole. However, consideration of Sir Andrew’s findings and recommendations will be postponed until later in this chapter.

Domestic tribunals

The foregoing has focused on public administrative tribunals set up under particular legislative provisions to deal with matters of public relevance. The term ‘tribunal’, however, is also used in relation to the internal disciplinary procedures of particular institutions. Whether these institutions are created under legislation or not is immaterial; the point is that domestic tribunals relate mainly to matters of private, rather than public, concern, although, at times, the two can overlap. Examples of domestic tribunals are the disciplinary committees of professional institutions such as the Bar, The Law Society or the British Medical Association; trade unions; and universities. The power that each of these tribunals has is very great and is controlled by means of the ordinary courts, ensuring that the rules of natural justice are complied with and that the tribunal does not act ultra vires, that is, beyond its powers. Matters relating to trade union membership and discipline are additionally regulated by the Employment Rights Act 1996.