Select Committee on Constitution First Report

Tribunals, Courts and Enforcement Bill

1.  The Constitution Committee is appointed "to examine the constitutional implications of all bills coming before the House; and to keep under review the operation of the constitution". We have raised several matters with Baroness Ashton of Upholland, Parliamentary Under-Secretary of State at the Department for Constitutional Affairs (DCA), during the course of our scrutiny of the Tribunals, Courts and Enforcement Bill and with the Lord Chancellor in relation to the draft bill that was published during the summer recess. This correspondence is reproduced at Appendix 1.

2.  This report has one aim: to draw to the attention of the House the absence in the bill of a sufficiently firm legal basis for one of the Government's main aims in reforming the tribunal system, namely to encourage the widespread use of mediation and other alternative dispute resolution (ADR) techniques. It is beyond the scope of our terms of reference to pass comment on the merits of this policy, as these are for the House as a whole to consider. Our concern is that this lacuna has implications for the constitutional principles of accountability, the rule of law and access to justice.


3.  The Tribunals, Courts and Enforcement Bill was introduced to this House on 16 November 2006 and had its Second Reading on 29 November. This report is concerned only with Part 1 of the bill, which deals with tribunals and inquiries. A review of the tribunal system conducted by Sir Andrew Leggatt reported in August 2001 and recommended a package of reforms.[1] The Government's detailed response to the Leggatt review came in the White Paper Transforming Public Services: Complaints, Redress and Tribunals (Cm 6243) in July 2004. The Government made it clear that it wished to introduce reforms that in some respects were even more radical than those contained in the Leggatt review. The Government wished to see a shift away from tribunals focusing on formal hearings to a much greater use of ADR techniques. Indeed, we understand that there have been pilot studies in several tribunals, ahead of the bill coming into force, to test various approaches to informal dispute resolution.

4.  There is a broad consensus that ADR is a useful method for resolving disputes between parties who might otherwise have to resort to formal litigation. In 1999, following Lord Woolf's Access to Justice inquiry, the civil procedure rules—which in England and Wales govern the conduct of litigation in the county courts, High Court and Court of Appeal—encouraged the use of mediation and other ADR in place of trials before a judge.

5.  The Draft Tribunals, Courts and Enforcement Bill (Cm 6885), published in July 2006, contained clause 23 which provided:

"23(1) A person exercising power to make Tribunal Procedure Rules or give practice directions must, when making provision in relation to mediation, have regard to the following principles—

(a) mediation of matters in dispute between parties to proceedings is to take place only by agreement between those parties;

(b) where parties to proceedings fail to mediate, or where mediation between parties to proceedings fails to resolve disputed matters, the failure is not to effect the outcome of the proceedings."[2]

6.  The bill as introduced to the House now contains only a terse and passing reference to ADR. The Senior President of Tribunals—the senior judicial figure responsible for leadership in this field—is to have regard to "the need to develop innovative methods for resolving disputes that are of a type that may be brought before tribunals".[3]

7.  We saw much to commend in clause 23 of the draft bill. It provided a clear statutory basis for the use of mediation. Moreover, it provided guarantees for citizens against undue pressure to use ADR rather than seek access to justice more formally at a tribunal hearing. When challenges are made to the merits or lawfulness of a public authority's decision, there is more often than not a considerable imbalance of power. It is therefore appropriate that ADR should take place in a proper legal and constitutional framework.

The Accountability Issue

8.  The first issue we draw to the attention of the House relates to the constitutional principle of the Government's accountability to Parliament. When a Government introduces a bill to create a major new scheme and establish important public authorities, the provisions of the bill ought to reflect the Government's underlying policy goals. If a bill fails to do this, not only is Parliament denied an opportunity to scrutinise that policy during the bill's passage through Parliament, but in years hence Parliament may be restricted in the scope of any post-legislative scrutiny it wishes to conduct.[4] The omission from the bill of a clause dealing fully with mediation creates a significant mismatch between the legislative scheme put before Parliament and the Government's avowed policy goals in establishing the new tribunal system.

9.  There can be no doubt that the use of mediation and other ADR techniques is at the very centre of the Government's aims for the new tribunal system. Baroness Ashton spells this out in her letter to our Chairman, reproduced at Appendix 1. The aforementioned White Paper, which informed the framing of the bill, describes a wish for "radical new approaches to dispute resolution".[5] The White Paper states:

"What we need to do is to create the unified tribunal system recommended by Sir Andrew Leggatt but transform it into a new type of organisation which will not only provide formal hearings and authoritative rulings where these are needed but will have as well a mission to resolve disputes fairly and informally either by itself or in partnership with the decision-making department, other institutions and the advice sector".[6]

"Telephone and video conferencing already makes it possible to have virtual hearings but we need to go further and to re-engineer processes radically so that just solutions can be found without formal hearings at all. We expect this new organisation to innovate".[7]

The Rule of Law Issue

10.  Baroness Ashton told us that "tribunal members and staff (like their counterparts in the courts) do not need express statutory power to mediate disputes" (see Appendix 1). We do not share the Government's confidence about this, either as a matter of strict law or broad constitutional principle.

11.  It is accepted that the superior courts, such as the High Court of England and Wales, have an "inherent jurisdiction"—powers derived from the common law rather than statute. The position of tribunals is, however, far from settled. Even if it is accepted that tribunals do have such inherent powers, their scope is not certain.[8]

12.  The broad constitutional question is whether it is desirable that public authorities established by Act of Parliament ought to derive their principal powers from express legal provisions. The answer is in the affirmative. This is an aspect of the rule of law, captured well by Mr Justice Laws (as he then was) in R v Somerset County Council ex parte Fewings [1995] 1 All England Reports 513 at page 524, a case to do with whether a local authority could lawfully ban stag hunting on its own land:

"Public bodies and private persons are both subject to the rule of law; nothing could be more elementary. But the principles which govern their relationships with the law are wholly different. For private persons, the rule is that you may do anything you choose which the law does not prohibit. It means that the freedoms of the private citizen are not conditional upon some distinct and affirmative justification for which he must burrow in the law books. Such a notion would be anathema to our English legal traditions. But for public bodies the rule is opposite, and of another character altogether. It is that any action to be taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake; at every turn, all of its dealings constitute the fulfilment of duties which it owes to others; indeed, it exists for no other purpose ... Under our law, this is true of every public body. The rule is necessary in order to protect people from arbitrary interference by those set in power over them."

13.  The tribunal system, established by statute, is not in the same position as banks, businesses and other commercial enterprises which have chosen to set up dispute-resolution schemes for dealing with customers' complaints. If the new tribunal system is going to engage in widespread use of ADR, that should be done on the basis of express legal authority contained in primary legislation.

Access to Justice

14.  A further constitutional principle at stake is that of access to justice. The use of ADR is said by the Government to be a measure to increase access to justice. We acknowledge the consensus that mediation and other ADR methods are capable of providing speedy, relatively cheap and less intimidating approaches to resolving complaints about public authorities. But as Baroness Ashton told the Committee, "of course the fundamentals of access to justice, such as the right to a fair hearing under article 6 of the ECHR, cannot be affected" (see Appendix 1).

15.  We leave to one side article 6 of the European Convention on Human Rights, as in the context of tribunals that raises a number of technical legal issues of some complexity.[9] There is no doubt, however, that access to justice is a principle of the British constitution. In this context, we draw to the attention of the House two sets of distinctions: between a grievance dealt with by a mediator or staff lawyer at a tribunal and one dealt with by a tribunal judge, whose independence and impartiality is guaranteed by the statutory framework; and between ADR in the form of a voluntary service offered to the aggrieved citizen and ADR as a compulsory requirement.

16.  The House has long been alive to the constitutional dangers of ouster clauses—provisions in bills which seek to hinder a citizen's access to an independent and impartial tribunal or court. Ouster clauses are not the only way in which access to a fair hearing by an independent tribunal can be impeded. Clause 23 in the draft bill provided some assurance that appellants, who will often be vulnerable by reason of poverty, age or ill-health, will not be or feel pressurised by officials into using ADR when what they seek is a hearing before an independent tribunal judge.

1   Lord Chancellor's Department, Tribunals for Users: One System, One Service-Report of the Review of Tribunals by Sir Andrew Leggatt, March 2001. See Back

2   The full text of draft clause 23 is reproduced at Appendix 2 below. Back

3   Clause 2(3)(d). Back

4   On post-legislative scrutiny see the recent report by the Law Commission, Post-Legislative Scrutiny (Law Com No 302, Cm 6945). Back

5   Paragraph 6.41. Back

6   Paragraph 4.21. Back

7   Paragraph 6.20. Back

8   See Sir Jack Jacob "The Inherent Jurisdiction of the Court" (1970) vol 23 Current Legal Problems 23 and M.S. Dockray "The Inherent Jurisdiction to Regulate Civil Proceedings" (1997) vol 113 Law Quarterly Review 120. Back

9   Article 6 guarantees a fair hearing before an independent and impartial tribunal for all "civil rights and obligations". The category of civil rights and obligations has yet to be defined with clarity and may-as a matter of European Convention law-exclude some type of welfare benefits. Decisions that involve a large measure of official discretion may also fall outside the protective ambit of article 6. Back

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