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Report of the Review of Tribunals by Sir Andrew Leggatt

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(December 2001)

This is the Council's response to the Consultation Paper "Tribunals for Users", issued by the Lord Chancellor's Department in response to Sir Andrew Leggatt's Report of the Review of Tribunals. Where appropriate the Council has expanded its views beyond the range of the question. The Council provided its views on many of the topics that are covered within the Consultation Paper in its Submission to the Review (September 2000) which should be considered alongside this response.

The main issue

The Council wishes at the outset to emphasise its strong support for what it sees as the central Leggatt proposal: the transfer of responsibility for the operation and administration of tribunals to the Lord Chancellor's Department, with the creation of a Tribunals Service in parallel with, but serving distinct purposes from, the Courts Service.

Such an arrangement would ensure the actual and perceived independence of tribunals from those whose decisions are challenged; clarify tribunals' position as part of the judicial arm of the state, not as an instrument of policy; and provide a framework in which the low priority too often afforded to tribunals could be consistently addressed. It would offer the potential of an integrated and coherent service for users; better career structures for chairmen, members and staff; improved provision and use of proper tribunal hearing facilities; greater consistency in tribunal administration, procedure and practice; and more structured and effective feedback from tribunal experience to the improvement of first-tier decision-making.

In short, the Council believes that the proposal offers opportunities for improvement which in sum would be unlikely to be achieved in any other way.

The Council has regularly commented in its Annual Reports on the extent to which some tribunals do not have sufficient resources to carry out their functions effectively. The reason for this, in the Council's view, is the low level of funding priority which some departments accord to the tribunals under their sponsorship. Whilst the Council views this as regrettable, it is easy to see why tribunals are not high on departments' priorities, since they are not part of their core business, but simply a by-product of that business.

Moving to a unified Tribunal Service under the supervision of one department, the Lord Chancellor's Department should serve to raise significantly the status of tribunals, not just in terms of funding but also of profile.

Related evidence

The question of tribunals' independence was discussed at the Council's conference on 21 November, and the Council has already submitted the full transcript of that discussion as part of its evidence. The Council includes with this response selected extracts from reports made by its members on their observations of tribunal hearings between January 2000 to November 2001. These are made available to the Implementation Team in confidence. They provide commentary in support of parts of this response; where appropriate the response cross-refers to these extracts.

a) The Council agrees that a reformed tribunal system should focus particularly on maintaining and improving the services that tribunals provide to all their users. The user of a tribunal might be the appellant, any party to the appeal (for instance a Government department), the parties' representatives (including representative organisations such as CABx) and witnesses. Where appropriate the Council refers to the "applicant user" in this response: the "user" being used in the wider sense. In considering the issues raised throughout the Consultation Paper the Council supports the aim of an end-to-end process, which would eliminate any unnecessary delays. One system where there are delays that lengthen the overall process is the MHRT.

Advice and Representation

b) The Council notes the aim of the Report's recommendation 23 "with very few exceptions.... tribunals' distinctive procedures and approach should enable applicant users to prepare and present their cases themselves" - but does not believe that this is achievable in all cases, even in the most user-friendly tribunal system. The Council does not think that it is realistic to expect a situation in which most applicant users will be sufficiently capable, confident or knowledgeable to represent themselves before a tribunal. There may be particular difficulties about the case or particular difficulties for the individual. The Council does not share the view that hearings can generally take place without any help being available to an applicant user. An individual should be able to use a tribunal's services without representation if he or she so wishes. However the Council thinks it would be a mistake to assume that representation is in contradiction to a participatory kind of hearing. Representation, properly done, is often conducive to the appellant's full participation.

c) The Council suggests that it is necessary to draw a distinction between assisting an appellant to present a case and enabling the appellant to prepare a case. Whilst the Council accepts that there may be ways in which a tribunal can assist applicant users to present a case, it is not clear how applicant users could be assisted by a tribunal to prepare a particular case. However, the tribunal should be available to explain its procedures if a user has difficulty in understanding them. This raises an issue about the fundamental role of tribunals. The Council submits that there is a continuing need for appellants to have access to good quality advice and representation (also see answer to questions 31 and 32).

d) As an example, the Council looks to the largest tribunal system, the Appeals Service, which deals with appeals from individuals, some of whom come from the most disadvantaged sections of society. The decisions under appeal are based upon complex social security legislation and case law. Even moderately articulate individuals would have some difficulty presenting their case because of the complicated nature of the rules under which these decisions are made. The amicus curiae role played by departments' Presenting Officers often facilitates a more participatory style of hearing from the appellant's viewpoint. It has been suggested that one consequence of the dearth of presenting officers in this system is that the tribunal is sometimes put in the position of appearing to be asking the department's questions for it by challenging the applicant user's contentions. The feeling among the delegates to the Council's conference in November 2001 was that in some systems (such as the Immigration Adjudicators) it is important that applicant users are represented, and that there should be equality of arms between the parties (see also answers to questions 31 and 32). Another point that was stressed was that in a system like the Mental Health Review Tribunals, the lack of representation before the Tribunal would be prejudicial to the patient's case and inimical to justice. One of the features of tribunals is their easy accessibility to those individuals who wish to use their services.

e) Advice and representation is not always sought from a legal provider. In some cases different representative bodies, some of which are funded by local authorities, provide support. For example, in the Pensions Appeal Tribunals, the Royal British Legion supports many of the applicant users in presenting their cases. In other jurisdictions a specialist body, such as the Medical Defence Unions in National Health Service disciplinary cases might provide representation. In such cases, the saving in tribunal time that is gained through the provision of such assistance should be considered, particularly when many representative organisations are inadequately funded and thus unable always to provide a service of sufficient quality.

The tribunal's role

f) The Report talks about tribunals playing a more enabling role. It does not expand on what this should entail on the part of the tribunal judiciary and, in particular, how far the tribunal chair might be able to go in assisting appellants to make their case. If such an approach were taken too far, it could impinge on a tribunal's independence. This would be particularly problematic in party v party appeals, where there would be a very fine balance to achieve between the rights of one party and the other, ensuring that the tribunal was not seen to be giving one party any advantage over the other. There are limits, which should properly restrict a tribunal's obligation to help an appellant.

g) While the Council agrees that all tribunals should publish service standards and performance measures, it does not think that each tribunal should do this in isolation. There should be a clear common framework of performance standards, albeit one which allows sufficient flexibility (for example in setting precise targets) to enable the particular circumstances of particular jurisdictions to be taken into account.

h) The Council itself is already well advanced in the development of such a framework of standards and a draft of this was considered at its conference for tribunal heads on 21 November as part of the consultation process. Tribunal user and representative organisations have also been consulted on the draft with a view to the framework being published in April 2002.

Alternative dispute resolution

i) Although the Council agrees that alternative dispute resolution has been seen to be helpful in some areas such as employment and special educational needs ADR is not a universally applicable approach. would only have merit cases where there room for negotiation from outset resort should made if this involves putting pressure on parties invoke statutory appeal rights. can protracted costly.

Case management

j) The Council firmly endorses the view that procedures allowing for active case management are essential to the efficient use of tribunal resources and to the resolution of unnecessary delays. It believes moreover that the enhancement of IT systems could play a material part in facilitating these aims.

k) Given that active case management is likely to include the scope to weed out weak cases at an early stage, it is however important to ensure an efficient mechanism for such decisions to be challenged: many cases which look weak on paper sometimes turn out to be much stronger than at first appeared. The Council would urge caution in the development of any system for weeding out weak cases at an early stage.

I.T.

l) The Council strongly supports the view that all tribunal systems should have modern IT available to them, both to improve their effectiveness of operation and to improve access for users (without of course assuming that all users, especially applicants, will be on line). The extracts provide a few instances where access to IT would have greatly benefited the tribunal; they also provide examples of systems where IT is being put to good use and proving to be cost-effective, and of others where it needs to be improved.

m) The examples included within pages 57-74 also include observations relating to systems where there are clear problems arising for the tribunal, whether because of deficiencies in its administrative support or the way in which paperwork is submitted to the tribunal.

a) The Council believes that there are other areas where improvements could be made. As the Council says in its response to question 1, effective representation (not necessarily legally based) can speed up tribunal hearings, increase throughput and reduce costs per case, through the removal of the need for protracted questioning by the tribunal. At present many tribunal users simply do not have access to sources of good quality assistance with representation. Many good quality representative organisations are poorly funded and there is the potential for savings in the overall costs of tribunals if there were easier access to good quality assistance.

b) Much of the success of the reform of tribunals will also depend on better standards of first-tier decision making. Departments should contribute to this process by striving to improve the standards of decision making. A more streamlined, end-to-end process would help achieve better decision-making and, in turn, lead to fewer cases needing to go to appeal. The decision-maker should provide the applicant user with information about appeal routes and sources of appeal guidance. This could perhaps be achieved through the provision of clear checklists. Information to applicant users should be clear and easy to understand. Examples of clear information are to be found in material issued by the SENT, and the Copyright Tribunal.

c) There is a wide range of examples within the extracts of hearings which were handled extremely well. Some others indicate shortcomings in the service at present being given to tribunal users. The examples show inadequacies in accommodation, access to the venue, facilities for the user and especially the applicant user, information, inadequate procedural rules.

a) The Council supports entirely the views expressed in paragraph 1.19 of the Leggatt Report about the existing uneasy relationship between most tribunals and their sponsoring departments, on whose decisions the tribunals are required to adjudicate. The Council has held this view throughout the years of its existence. Members of the Council have been told by some members of the tribunal judiciary (most recently at the Conference 2001) that their tribunal cannot be seen as truly independent because of the nature of their relationship with the sponsoring department. Tribunal judiciary can be aware of their tenuous position, where the department is responsible for their resources. Council members have from time to time observed incidences of over-familiarity between a tribunal and one party to an appeal, usually a department's Presenting Officer.

b) There are examples within the extracts showing where it is clear that independence is an issue, perceived or otherwise for the tribunal and the user. Other examples indicate where there has been clear reluctance on the part of the department that sponsors the tribunal to take steps to improve the service that the tribunal offers to its users. The extracts deal with these issues between pages 3-6 (tribunals' perspective) and 14-20 (users' perspective) with those at pages 25-35 providing examples of what might be loosely described as neglect or lack of enthusiasm on the part of the sponsoring department or authority. The inactivity on the part of the sponsoring department means in some cases that the tribunal and the users are not assisted by up to date and revised rules, guidance, provision of training, etc. and the tribunal's performance is affected in some way.

c) The Council published its advice on the issue of independence in its Special Report "Tribunals: their Organisation and Independence" (Cm 3744). The Report set out the Council's views on a range of conditions for independence, to enable tribunals to reach decisions according to law without pressure either from the body or person whose decision is being appealed, or from anyone else. These conditions, which should be met if administration of tribunals is transferred to the Lord Chancellor's Department included:

proper rules of procedure;
high quality appointments of chairmen and members;
proper training for chairmen and members;
appropriate standards of judicial performance, with guidance and support to chairmen and members (including the means for monitoring performance, particularly of newly appointed chairmen and members);
the freedom to take judicial decisions uninfluenced by resource or other external considerations;
proper administrative support in terms of hearing clerks and support staff, legal and other text books;
adequate and appropriate hearing accommodation in premises that are not connected with one or other of the parties;
sufficient resources properly allocated to meet those needs.

Whilst there are other improvements that should be made to the standards of accommodation for tribunal hearings, and to practices and procedures, the Council does not believe that this will remedy the lack of user confidence, which stems directly from the relationship between tribunals and their sponsoring departments. The Council would wish to see clear information provided to users, which should encourage an applicant user to attend the hearing of the appeal.

a) The Council believes there are a number of benefits for users from having all tribunals under the supervision of one departmental Minister, who it agrees should be the Lord Chancellor. This would provide a stronger focus for improving and rationalising tribunal administration; create greater public and judicial confidence in tribunals; provide better and more worthwhile career structures for tribunal members and administrative staff; and facilitate the spreading of good administrative practice across the board. It would also make better use of resources. The Council also think that such a structure would encourage - perhaps necessitate - the wider development of proper arrangements for "feedback" of the lessons learned from tribunal decisions into the improvement of first-tier decision-making. Many of the delegates at the Council's conference, including senior members of the tribunals' judiciary, support the proposal that there should be one Minister responsible for these functions. Their individual views are expounded in the transcript of the conference (and have been confirmed in their own responses to this Consultation Paper).

b) The Council considers that there would be very few, if any, benefits that would be lost in separating policy and tribunal administration. There will, however, be a need for departments to put in place appropriate mechanisms for receiving from tribunals details of significant decisions, which provide lessons for the first-tier decision-making process. This facility is not wide spread at present.

a) The Council strongly supports the aim of establishing a unified Tribunal Service. A dedicated Tribunal Service under the Lord Chancellor's Department would provide the only satisfactory way of overcoming the fundamental difficulties that arise when Departments with responsibility for policy and decision making also sponsor the relevant tribunals. These difficulties are:

The tribunals are not seen as truly independent
The tribunals are accorded a low priority in terms of resources and efficient administration
The tribunals are regarded by sponsoring Departments as an instrument of policy instead of part of the judicial arm of the State.

b) The Council also believes that a dedicated Tribunal Service will be the most effective and efficient means of improving tribunal services from the user's standpoint. It would provide an identifiable, integrated and coherent organisation (at judicial and administrative levels) for all users. By removing the administration of tribunals from the Departments responsible for policy, it would enhance the perception of the independence of tribunals from the applicant user's perspective. The alternative approaches listed in paragraph 12 of the consultation paper do not meet the fundamental problems presented by departmental sponsorship. The improvements that they contemplate, all of which are important, would be better achieved in the context of a unified Tribunal Service.

c) The Council is aware of hurdles that need to be overcome before a Tribunal Service embracing all tribunals could be established. However, the Council believes that steps in that direction should be taken as soon as possible. The Tribunal Service should be charged with establishing the improvements to administrative operations that are needed, including improved IT. Other tribunals should follow as soon as practicable. The Council would expect to be consulted at all stages.

d) Any other system involving co-operative working between tribunals will only be as good as the arrangements put in place to lead and manage that co-operation. A unified agency would resolve that issue; making limited changes to the existing system would not do so.

e) Finally, the Council would observe that if the tribunal system did not exist nobody would choose to invent the current dispersed structure; the present system has developed, piecemeal, over 50 years.

The Council agrees that any unified Tribunal Service should be an executive agency responsible to the Lord Chancellor. This would achieve a separation of policy from administration and help to demonstrate the independence of the tribunals. The Chief Executive would report to the Lord Chancellor (clearly the appropriate Minister) who would in turn report to Parliament.

a) In considering this question and the following two, the Council proceeds on the basis that a key characteristic of a tribunal is that it is a specialist independent decision-maker. Another characteristic, more often than not, is that a tribunal is required to take a fresh look at an earlier administrative decision, and in so doing it must approach its task judicially. These characteristics are found in school admission and exclusion panels. The benefits to them of being included in a unified Tribunals Service for panels is that their independence would be enhanced, and standards of administration and training could be improved.

b) The present statutory framework, which is predicated on local accountability, may seem to militate against the inclusion of the panels in a unified Tribunal Service, but the Council believes that tribunals operate better with a unified, presidential framework, and suggests that consideration should be given to changing the present framework. Alternatively, it may be possible to approach the matter in a different way. With only small modifications and improvements to the present system the independence of the panels could be enhanced. For example, appeal panels could be grouped, with each panel hearing appeals from the decisions of a neighbouring authority. There could also be common training, and executive agencies could be responsible for the administration. However, in the absence of improvements along these lines, the Council continues to think that there is a strong case for exclusion appeals being brought within the remit of the Special Educational Needs Tribunal (or SENDIST), as part of a unified Tribunal Service.

c) The issue of admission and exclusion appeal panels is not straightforward (see also the response to question 24) and the Council would be happy to address this in greater detail when time permits.

No.

a) As well as school admission and exclusion appeal panels, the Leggatt Report mentions valuation tribunals and parking adjudicators, where the current legislation gives local authorities a substantial role. If such tribunals were to be included in a unified Tribunal Service, some modification of the present statutory framework might be necessary, but this should not be an insuperable impediment. Substantial benefits could flow.

b) There are quite a number of party v party tribunals, in the fields of landlord and tenant, intellectual property and employment. They all have the key characteristics of tribunals identified in response to Question 12 above. The Council considers that they should all be included in the unified Tribunal Service.

c) The Council is aware of the view that employment tribunals are essentially labour courts and should therefore not be a part of the Tribunal Service. However, the Council considers it important for both employers and employees that these tribunals should retain and indeed enhance their tribunal ethos, with all that that implies in terms of cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject. Moreover, the Council believes that some of the present dissatisfaction within the employment tribunals themselves stems from the fact that they are sponsored by the Department with the main policy responsibility, with all the disadvantages identified in the answer to Questions 8-10 above. If responsibility for the tribunals were transferred to the unified Tribunal Service under the Lord Chancellor's Department, the Council firmly believes that a major cause of dissatisfaction would be removed. It strongly endorses the Leggatt Report's view (3.19) that the features, which are common to citizen v state tribunals and party v party tribunals, are much more important than those which divide them.

d) The extracts highlight the problem for the employment tribunals in dealing with their sponsoring department.

e) In October the Lord Chancellor's Department announced a task force to examine the reform of the employment tribunals; the findings of which will undoubtedly provide further opportunity to consider their position in the reformed tribunal system.

Yes.

While recognising the case for some kind of board to oversee the running of the Tribunal Service itself, the Council is not convinced of the merits of a Tribunals Board with the remit and membership set out in paragraph 6.40. The role of such a Board would appear to overlap to an uncomfortable extent with those of the individual Presidents, the Lord Chancellor, the Judicial Studies Board and the Council on Tribunals. The Council believes that this aspect of the proposals requires further consideration.

a) The Council welcomes, and shares, the vision for its future envisaged by the Leggatt Review, in which it becomes "the hub of the wheel that is the Tribunals System" (Overview, para. 21). It has already begun fulfilling the more proactive, higher profile role recommended by the review, as its recent conferences and publications demonstrate, and the Review endorses the change programme the Council has under way.

b) The Council can achieve a great deal towards this vision through changes in focus and in operating practices, and by effective use of additional resources, as they become available. The modest increases in resources made available in the current year have enabled output to be increased and work to be started on a major revision of the Council's Model Rules of Procedure for Tribunals. The Council will bid for additional resources in future years so that it can continue to expand its activities. It expects to demonstrate value for money in terms of its own output and of the resulting benefits to users of tribunals.

c) As it has outlined in its draft framework of standards, the Council regards a focus on, and responsiveness to the needs of, users as a key indicator of the performance of tribunal systems. The interests of users will remain key priority for the Council and its work on user-related issues will be substantially increased. As is explained elsewhere in this response, the Council thinks that it is important to recognise that users include government departments, representative organisations and others in addition to private individuals, and tribunals need to have the needs of the whole user community in mind.

d) The Council will continue to work to ensure that tribunals are meeting the needs of all sections of our diverse society. The Council's Disability Working Group will be publishing new guidance on access issues, and other work in partnership with representative organisations is planned. Elsewhere the Council discusses the issue of representation, which it regards as a key issue from the user perspective.

a) The Council believes that its role should be extended beyond monitoring the development of the Tribunal Service as envisaged by the Report [169,171]. It is already contributing to the development of plans following through its Chairman's membership of the LCD Strategic Board, and it seeks to contribute its expertise to any new structure that is created. It has doubts about the merits of the Tribunals Board proposed by the Review [112-114] and considers that the Council should perform many of the activities envisaged for the Board.

b) The Report envisages that both the Council and the JSB will have roles in relation to tribunals training, and the JSB will be making its own response to the recommendations, which the Council has seen and endorses. It will be important that the respective roles complement one another and the boundaries of responsibilities are clear. To this end, it would be useful if a Memorandum of Agreement between the two organisations were entered into.

With the JSB taking the leading role on training, the role of the Council should be to:

Promote good practice on induction, training and appraisal in individual tribunal systems (as set out in the Council's draft framework of standards)
Keep tribunals' performance against these standards under review through its ongoing programme of visits, meetings with Presidents etc.
Provide advice and feedback to the JSB about training needs and training issues based upon its observations
Seek advice and feedback from the JSB about the performance of tribunals on training issues, based on JSB monitoring and evaluation activities
Through the medium of its Annual Report, put information about tribunals training, including the results of JSB monitoring, in the public domain
Report from time to time on training related issues in Special Reports as it considers necessary
Through Conferences, consortium projects or other means, to encourage the sharing of best practice among tribunals and enable the tribunal community to respond effectively to new initiatives.

In other words, as the Chairman of the Tribunals Committee of the JSB said at the Council's conference - the Council should be looking at the tribunals world strategically, saying where the problems are, where the priorities are, where training could most usefully be directed and liasing with the JSB in that respect. The Council agrees with Mr Justice Sullivan's summary.

c) The Council has already made progress towards providing more systematic feedback to tribunals and is actively planning further improvements [173, 182]. It regards the development of its framework of standards as the cornerstone of this work, and consultation with Tribunal Presidents and others on this is under way. The opportunity to discuss matters arising on visits is already offered and frequently taken up. This is supported by written comments in some instances. While the Council is generally welcomed by tribunals whose hearings it wishes to observe and receives full co-operation from them, it welcomes the recommendation that it should have the right to attend the deliberation stage in all tribunal hearings as this will reinforce its ability to give meaningful feedback in all cases.

d) The Council's view is that feedback should be provided not only following individual visits, but also in the form of special reports based on a series of visits and other data. Its recent report on MHRTs is an example of such a report. It will enhance the importance of such reports if the government is required to publish a reply [177].

e) The Council favours the recommendations, which support its efforts to raise its profile. It would welcome the opportunity to report its work to a Select Committee [175], the authority to comment on primary legislation and a requirement that its concerns be recorded in explanatory memoranda to Bills and Statutory Instruments [178]. The recent launch of the Council's website is making its reports available more widely [176]. It very much supports the recommendation [181] that it should be enabled to commission research. It believes that even a relatively small research budget in the future would deliver significant benefits.

The recommendations of the Review referred to above represent a substantial extension of the role the Council has historically performed since its creation and if fully implemented will enable the Council to perform effectively as "the hub of the wheel that is the Tribunals System". The Review suggests that the Council's role might extend to acting as "the hub of the wheel of administrative justice" (paragraph 7.49), and in Chapter 12 indicates ways in which this might be taken forward. The Council warmly welcomes these ideas and looks forward to further consideration of them. There could be a case for reviewing the question of which bodies might fall within the Council's jurisdiction and the Council is willing to take forward discussions when appropriate. The Council is also willing to consider the extent to which it could develop principles to guide departmental policymakers when deciding whether a particular issue should go to the courts or a tribunal, in other words, the Council could assume a pre-emptive role.

Subject to the answers to questions 24-27 below, the Council supports the Report's proposed structure for second-tier appeals. The Council would emphasise the need for the judiciary appointed to the second tier to have the appropriate level of seniority and experience. The second tier would have equivalent standing to the High Court, and should carry commensurate weight and authority.

The Council does not think that there are any jurisdictions where there should be no second-tier appeal, but with the caveat that school admission and exclusion appeal panels require separate consideration because of the nature of their make-up. To avoid introducing unacceptable delay in urgent cases, second-tier appeals would need to be capable of proceeding at least as quickly as urgent judicial review cases.

The Council agrees that appeals to the second tier should be on points of law, provided that this is construed generously. For instance, a perverse view of the facts may amount to an error of law. Moreover, the Council considers that the second-tier tribunal should have the power to consider fresh evidence where the interests of justice require. This could be particularly important where life or liberty could be at stake, for example in asylum and mental health cases.

On the matter of precedent, the Council has considered the four options set out in paragraph 6.21 on pages 72-73 of the Report. The Report comes down in favour of the fourth option, making only some decisions of appellate tribunals binding (rather like starred decisions of Social Security Commissioners) while acknowledging a theoretical risk of abuse in the selection of cases. But the Council thinks that the proposed method of selecting cases, involving the Tribunals Board as well as the President of the appellate tribunal concerned, is not really practicable. The Council wonders whether any special provisions are needed to deal with precedent. It would perhaps be sufficient to rely on the persuasive authority of appellate decisions. Second-tier tribunals might give guideline decisions, as is done for example in the Court of Appeal (Criminal Division). What is essential is that important decisions, which first-tier tribunals would ignore or depart from at their peril, are well publicised and readily available to users.

a) As the Council sees it, the structure proposed by the Report in effect provides for an appeals system that runs parallel to the courts until a case reaches the Court of Appeal. It therefore makes sense that it should normally be insulated from judicial review. If first-tier decisions can be appealed (with permission) to the second tier on grounds of unlawfulness, and those of the second tier to the Court of Appeal likewise, then the discretionary remedy of judicial review ought in practice to be unnecessary. The High Court will not normally grant judicial review where there is a more appropriate alternative remedy.

b) However, there are certain kinds of decision that at present can only be challenged by judicial review, for example some interlocutory decisions or the refusal by an appellate tribunal to give permission to appeal from a lower tribunal to itself. The Council considers that such decisions should continue to be capable of challenge. If tribunals are to be excluded from judicial review, care must be taken to ensure that all decisions that are capable of going wrong can be appealed within the new framework.

The Council considers that, in the interests of independence, it would be better if all tribunal appointments were made by the Lord Chancellor. The appointment system and procedures should be subject to oversight by the new Judicial Appointments Commission. If at some time in the future the role of the Judicial Appointments Commission were changed so as to give it a direct involvement in the making of individual appointments, the change should apply equally to appointments to tribunals. Special arrangements would be needed where a tribunal's jurisdiction extends to areas of devolved responsibility in Scotland, Wales or Northern Ireland.

The Council considers that it would indeed benefit all users if different tribunals' procedural rules were made as consistent as possible with each other. In this connection, the Council has begun work to update and modernise its Model Rules of Procedure for Tribunals and intends that the new version should be available during 2002.

The Council considers that the Lord Chancellor should be the Minister responsible for making all tribunals' procedural rules, even if he does not become responsible for the administration of all tribunals. This would not only enhance the perception of independence but also concentrate expertise in one place and facilitate the achievement of consistency. The Departments having responsibility for policy should of course be consulted. As with appointments, special arrangements would be needed where a tribunal's jurisdiction extends to areas of devolved responsibility in Scotland, Wales or Northern Ireland.

As stated in response to question 1, the Council thinks that many applicant users will not be able to represent themselves, even in the most enabling and participatory of systems. The Council is therefore of the view that there will be a continuing need for good quality advice and representation. The principle of "equality of arms" must also be borne in mind. On that basis, the Council considers that funding for representation should be available in appropriate cases before all tribunals. It would not be appropriate to exclude any tribunals from funding provision. The Council acknowledges that any proposal to extend the availability of representation would be likely to have significant resource implications. The Council would therefore see some merit in carrying out a more detailed study of users' needs in this area, across all tribunal systems, in order to move from the current piecemeal approach to one that relates more directly to particular circumstances.

The Council suggests that the proposed elements of the merits test are rather narrow. They should be based not simply on the merits of the case, but also on the particular needs of the individual bringing the case, for example where it could be shown that an individual would have substantial difficulty in marshalling and articulating arguments effectively. However, a person should not be required to demonstrate an inability to conduct a case in person in order to qualify for publicly funded representation. Advisers would have an important role in identifying cases where such representation is needed.

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