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Comment :
Legal Foundations of Tribunals in Nineteenth Century England - a review
(July 2007)
Susan Howdle, former member of the Council on Tribunals and former lecturer in law, reviews Professor Chantal Stebbings' recently published 'Legal Foundations of Tribunals in Nineteenth Century England'.
"In all regions of life the area of freedom is being contracted. Everywhere appears an inclination to take out of people's hands the management of their own affairs. Everywhere the realm of the inspector and the commissioner ... is widening."
Anybody reading Chantal Stebbings' recently published Legal Foundations of Tribunals in Nineteenth Century England is tempted to cherry-pick all sorts of examples like that 'nanny state' one to conclude that there's nothing new under the sun. That way lies danger: the challenges of the massive and rapid industrial and commercial expansion of the 19th century were very different from those of the post-industrial 21st century, and to draw all sorts of anachronistic parallels does not do justice either to Professor Stebbing's scholarly work or to the challenges now facing the tribunal world.
Nevertheless I do wish that this book could have been in my hands earlier in my tribunal life. It's an antidote to what can too easily become the conventional wisdom, which might paraphrase Alexander Pope's couplet about Newton (Isaac, not Tony!):
'Tribunals, and Tribunals' laws lay hid in sight:
God said "Let Franks be!" and all was light.'
There was tribunal life – and even life as we know it – before the Newton and Einstein of our world, Franks and Leggatt, appeared over the horizon.
Regular readers of Adjust will recall Professor Stebbing's summary of her research. As a legal historian and a tribunal member, she brought a wealth of experience to the task. I do urge you to read her account of how the challenges of industrialisation, vastly increased population, migration to the towns, the revolution in transport and commercial life, and changing working practices all led, in the decades following the 1830s, to the explosion of regulatory activity which was increasingly interventionist, centralist and collective. We might say that we still live under the fall-out of that explosion. It in turn led to the creation of a range of ways of dealing with a great variety of dispute-resolution needs. As she points out, it is easy to overlook the pragmatic and creative approach the Victorians adopted. In some respects, yes, we may see the developments as accidental, piecemeal, not grounded in sound legal logic, or at least not within the classical common law tradition of the rule of law, with its 'no such thing as public law' approach (the 'dead hand of a Dicey'). But they can be viewed in a more positive way as displaying the sort of flexibility and willingness to experiment which we are only now beginning to recapture in catchphrases like 'proportionate dispute resolution'.
Examples of this abound, whether in the area of land tenure, the public revenue, or (our language, not theirs) health and safety. The most striking example – and perhaps we tend to forget the absolutely crucial role of this phenomenon in nineteenth century life – is the account of the various means of dealing with the developing needs of rail transport. Could those processes be contained in the old wineskins of the antiquated common law courts and procedures? In particular, what dispute-resolution machinery was appropriate to support the new regulatory regime by which passengers and traders should enjoy the same facilities over the whole country? We see the various debates and experiments over the decades, arriving at what in one sense could be described as the archetypal bespoke tribunal, the Railway Commission.
Of course we must beware of going along with an assumption that there was a label, let alone a recognisable genre known as 'tribunals'. Only gradually were words like 'commission' and 'board' replaced by the more modern 'tribunal' with its strong judicial connotations. But just look at the index of this book for the range of issues with which these various dispute-resolution bodies had to grapple. It reads like a checklist of items in the workplan of the Tribunals Service: accessibility, costs, fees, finality of decisions, inquisitorial function, legal representation, perceptions and public confidence, public information, reasons for decisions, remuneration of personnel, simplicity and informality, specialist knowledge, speed ...
Just a couple of examples chosen almost at random: "As was observed in relation to the new Railway Commission proposed in 1872, and reflecting popular views on the desirable attributes of the tribunal process, its proceedings were to be 'as simple and inexpensive as is consistent with giving due notice and hearing questions openly and fairly'" (p.184). "The need and the opportunity were there for legislators to design new, informal and swift procedures that addressed novel political and social needs. It constituted a considerable challenge. Procedures had to be established which were so simple and informal that they did not require the involvement of the legal profession, that ensured the process was not protracted and yet were clear and precise. It had long been understood that precision and clarity were often inconsistent with brevity. Furthermore they had to be formal enough to make it clear to the parties that the adjudication was serious and official. As a solicitor observed in 1911, the process should not be 'too conversational'" (p.185).
But in recognising all these familiar internal features, there is a danger of not seeing the wood for the trees. There is one major feature – the boundary and location of that wood, one might say – which to a post-Franks generation is less familiar. A fundamental theme of the book is that, for much of the period, whatever dispute-resolution bodies were devised for the various needs, those bodies were clearly organs of the executive. Yes, they might have procedures which could gradually be perceived and labelled as adjudicative, even judicial, but these processes were integral to their primary administrative function, and not an aspect of the judicial arm of the state. Tribunals were 'given judicial functions solely to achieve their administrative ones'.
So, to use recent White Paper language, the 'wood' of tribunals was located in a very different place in the landscape from the one which we have come to expect. The legacy of Franks was to recognise – or establish – the reality that 'tribunals should properly be regarded as machinery by Parliament for adjudication rather than as part of the machinery of administration' (Franks Committee Report, 1957, para. 40). It was to be almost another 50 years before Leggatt finally made the logical conclusion of this almost unavoidable (conceptually, and eventually politically) – the necessity for independence from what we were by now calling sponsoring departments. Yet reading Professor Stebbing's account raised in my mind the sort of thought which, no longer being a member, I can happily put to the evolving AJTC: if the proper business of a tribunal is to be part of the proportionate dispute resolution processes for a particular area of activity within the wider administrative justice landscape, is 'independence', as opposed to an appropriate and efficient relationship of 'interdependence' between the initial decision-maker and those processes, really the holy grail we've so often assumed it to be?
But I leave the deeper conceptual analysis and critique of her book to others more qualified to write about it. For myself, I simply recommend to you her story of the energetic, optimistic, inventive world of the 19th century. I don't promise an easy read – if I had one criticism it would be the lack of a 'route map' in terms of sub-headings in the very long chapters. But it certainly takes one back into the world of a Dickens novel or Frith painting. One is tempted to think, "all human life is there". Until one asks the question we're all asking these days: "what about the user?". If Hazel Genn's recent research shows how far we still have to go in relation to access, and attitudes, and experiences, it's hardly surprising that (particularly before the National Insurance tribunals of 1911) the role played by the vast majority of the population – 'the poor' – in this story seems to be not as actors but simply as subject-matter, whether of rating cases or factory regulation. There is at least an interesting walk-on part for women (more well-to-do ones anyway) here: part of the argument for removing the prohibition of legal representation before the General Commissioners of Income Tax in 1898 was that it had been shown to cause hardship particularly among female appellants.
As I said at the outset, I wish I could have read this when I joined the Council on Tribunals 9 years ago. To borrow FE Smith's retort to an irritable judge's comment that FE's argument had left him no wiser: I might indeed sadly have been no wiser for reading it, but I would undoubtedly have been better informed.
Legal Foundations of Tribunals in Nineteenth Century England
by Chantal Stebbings
is published by Cambridge University Press (2006)
ISBN 13 978 0 521 86907 2.