Comment : "Lay-members" or "non-legal members"?
(April 2006)
John Eames, a member of the Asylum and Immigration Tribunal and former member of the Council on Tribunals, talks about the role of non-legal members in tribunals in the light of the intended DCA review.
The term "lay-member" has been in use for a long time to describe tribunal members without a legal qualification, or sometimes those without a medical or other easily definable professional qualification. Even if the term is now normally absent from the legislation governing tribunal systems, it is still in common use colloquially among tribunal members, and often forms part of the language of recruitment procedure. In my view this is unfortunate. It is time that the term was dropped.
Leggatt[1] referred to "non-lawyer" members; the DCA White Paper[2] talks about "non-legal members"; both are correct. Non-legal members are an established and distinctive feature of the tribunals landscape. They serve on judicial tribunals in the fields of social security, immigration, mental health, war pensions, education, health, rent, valuation, employment, immigration advice services, among many other jurisdictions.
We all know that one of the essential features of a tribunal as opposed to a court is that it is specialised. Unlike many courts, a tribunal has the possibility not just of applying a generic legal process to a case, but of applying specialist knowledge unique to the categories of case that it hears.
The DCA White Paper comments on non-legal members that their deployment "is intended to ensure that the tribunal has the expertise, knowledge and experience to do justice to a case".
In my own jurisdiction, the Asylum and Immigration Tribunal, the governing legislation[3] prescribes that "a person is eligible for appointment as a member of the Tribunal only if he [...] in the Lord Chancellor's opinion, has non-legal experience which makes him suitable for appointment". Still rather vague, it may be said, but the recruitment procedure adds plenty of detail on what this must mean in terms of a person-specification.
Non-legal members are not on tribunals just to make up the numbers, or to provide some balance or untutored "common sense"; nor should they feel they are representing the "person in the street" (which is the role suggested by the term "lay-member"). In modern tribunals they are there because of their expertise.
This was not always so. The lay-member tradition in the old Industrial Tribunal, in pre-1998 social security tribunals, and others, held that the lay-membership represented democracy-in-action as does a jury, and the presence of lay-members on a tribunal was per se in the interests of justice where the fundamental interests of the citizen are at issue. There was a sense in which certain categories of lay-member were supposed to represent the interests of a certain class of citizens.
However, times have changed. The thrust of policy thinking now is – quite rightly – to define non-legal members' role with greater rigour, and to apply sharper analysis to the ways in which they can help deliver better justice. It is no longer sufficient to say that lay-members are qualified to sit by their sheer ordinariness. And we all recognise increasingly that the notion of members representing an interest sits uncomfortably with the judicial process.
Leggatt felt non-legal members were a positive presence but had little time for "the appointment of 'lay-members' with no specific expertise or qualifications" and argued for their role "to be defined in criteria" and "on the basis of the particular contribution they have to make to [the tribunal's] work".
We should welcome and promote this more modern emphasis. Against the background of the DCA's Review of the role of non-legal members, it now seems imperative to define really meticulously the role of non-legal tribunal members, whilst also requiring that they deliver a high level of expertise and participation in the adjudication process.
John Eames, April 2006
John Eames is a member of the Asylum and Immigration Tribunal. He was a member of the Council on Tribunals from 1996 to 2002. This paper is written in a purely personal capacity.
Footnotes:
- Sir Andrew Leggatt: Tribunals for Users 2001 [back]
- DCA White Paper: Transforming Public Services: Complaints, Redress and Tribunals [back]
- Schedule 4 to the Nationality, Immigration and Asylum Act 2002 as amended by the Asylum and Immigration (Treatment of Claimants etc) Act 2004 [back]