The Standards of Independence and Impartiality - Essay Example

In the process of administration the Central and local governments make a large number of decisions. These decisions are at times either wrong or ambiguous. In order to redress these mistakes, tribunals make attempts to deal with these breaches of standards. However, they are not always the only means of redressal and provide an easier solution to some problems. A tribunal is an independent judicial body that acts as a court for specific issues such as employment or transport. The Court Service administers tribunals that fall under the direct responsibility of the Lord Chancellor. Most tribunals deal with cases that involve the rights of private citizens against the State. Many of these tribunals deal with issues that are central to the fight against social exclusion like for example, social security, child support and mental health. Tribunals are a large and important part of the justice system, that have, hitherto fore, not received the attention and recognition that they deserve. The progress of equal pay cases can be normally slow and complicated. Cases pertaining to jobs of equal value involve enormous number of claimants with a wide range of implications. Tribunals face a lot of difficulty in dealing with complex cases which involve expertise, because they will be forced to appoint an independent expert to prepare a detailed case study and evaluation report and this causes inordinate delays. Further these independent experts are not supplied with sufficient information and further, they do not possess the required authority to demand such information from the claimants. The tribunal cannot enforce any sanction on the experts in the case of delays and the availability and appointment of such independent experts also involves time. In addition, tribunals conceal the identity of the independent experts and this has the effect of discouraging claimants, to some extent, in providing complete information. In order to mitigate these problems, section 8(5) of the Employment Tribunals Regulations stipulates that the Employment Tribunal Presidents are to be endowed with the power necessary to establish specialist panels of chairmen and representatives of employers to examine cases that require expert knowledge. Some steps have been considered in order to streamline case management by making the rules easier and by engendering the early exchange of information, engagement of independent experts and by ensuring that information is given to them at the early stage of the proceedings1. Another problem consists of the fact that there are no plans to extend legal aid to people whose incomes are low and who are involved in the complex tribunal procedures. The situation obtaining at present is such that many people have to meet their own costs, and have to represent themselves, whilst many employers are represented by experienced barristers. This practice enables employers or their legal representatives to use the threat of costs to intimidate and deter those making an application to an employment tribunal. Tribunals cover a very wide range of important issues like health, employment, benefits, housing and immigration and people depend on them to protect their important basic rights. If tribunals are to provide effective justice then people bringing and defending cases before it must have access to low cost and informed legal aid. The government had initiated steps to ensure that tribunals meet the standards of independence and impartiality as required by the Human Rights Act. In Starrs and Chalmers v Procurator Fiscal2 the court decisions have confirmed that Employment Tribunals3 and School Admission and Exclusion Appeal Panels4 meet the required standards. Therefore, the government is of the firm belief that tribunals fully meet all the requirements of the populace and that no further changes should be required on that account. However, the government will take all necessary steps wherever the arrangements in any particular tribunal are found to be insufficient. Apart from the considerations of human rights, tribunals should be administered by departments, whose policies or decisions they do not consider and in the absence of such arrangements being in place, it will be difficult to ensure that a tribunal is truly independent and impartial and there is a risk that users will not perceive it as being independent. Hence, the establishment of a unified Tribunal Service to administer almost all tribunals is the only way to ensure that the desired service standards are implemented. Only such an institution would have the weight and focus to push through service improvements. The benefit of implementing such a service is that it enhances users' confidence in the system by engendering the idea that tribunals are to a great extent if not totally independent. Such a service is the simplest and most certain way to provide a single focus and point of contact for users. The establishment of such a service would endow tribunals with a higher profile, status and authority thereby enabling them to better influence the quality of initial decision-making by the various departments. The provision of electronic access to tribunals' services will make their work help to provide a more challenging and fulfilling career for staff. This will make the task of attracting and retaining competent and expert workers easy. It will also bring about better geographical access, particularly in respect of users of smaller tribunals and those living in rural areas. In the larger centers, it would enable legally-qualified chairmen to sit in a number of jurisdictions. In the medium centers, it would offer better value for money, for example through rationalizing accommodation and a common IT system. However, there are some disadvantages to creating a unified Tribunal Service. The most important of such disadvantages are discussed in the sequel. It involves major structural changes that could distract attention and resources from delivering service improvements. It would break the existing close links between some tribunals and the departments responsible for the relevant administrative decisions and underlying policy resulting in making it harder to manage the end-to-end process efficiently or to draw on the tribunal's expertise when developing policy. In some cases, it could also serve to weaken the tribunal's links with organisations involved in the voluntary resolution of disputes. Such vast changes have to be implemented in a phased manner, and would have to be coordinated with the reforms that have been already planned for particular tribunals. This would necessarily involve a lengthy period of change and uncertainty for users, judiciary and the staff. There are wide differences between individual tribunals in terms of the subject matter they deal with and the policy context and the nature of the expertise required of its members. This makes it difficult to achieve consistency of approach, flexibility in deploying personnel and other resources, the common procedures and IT systems and the better value for money5. At present, there is a right to further appeal against the decisions of some tribunals, but not in respect of all tribunals. The grounds on which such 'second-tier' appeals can be made are at a variance with decisions by second tier tribunals sometimes binding future decisions by first tier tribunals in similar cases. A few second tier tribunals are equivalent in status to the higher courts; hence their decisions cannot be challenged in the courts by way of judicial review, although most tribunal decisions can be challenged in this manner. The current procedure for appointing tribunal members are complex. The Lord Chancellor makes a large number of appointments, including appointments to tribunals that are not administered by his department. In some cases, the Minister for the administering department or the local authority appoints all the tribunal members controlled by that department. In some cases, the Lord Chancellor appoints legally-qualified chairmen, however, the Minister for the administering department appoints the other members. The functioning of tribunals should be simple and accessible and such that the great majority of appellants are able to represent themselves. Nevertheless, there are cases, for example some second-tier appeals on a complex or novel point of law, where this is impossible. Therefore it is essential to extend the scope of Community Legal Service funding to encompass Legal Representation in tribunals. Such extension is at present unavailable, save in respect of cases involving exceptional circumstances. Such funding would be subject to a strict merits test in the Legal Service Commission's Funding Code.6 Such changes will augur well for the appellants who will have better prospects for success and further prove to be very useful in situations where the appellants cannot represent themselves due problems caused by language or mental difficulties, complex legal issues, etc. Bibliography. 1. Commercial Appeals Commission Act, R.S.B.C. 1996, c. 54. 2. Environmental Management Act, R.S.B.C. 1996, c. 118. 3. Farm Practices Protection (Right to Farm) Act, 1996, c. 131. 4. Financial Institutions Act, R.S.B.C. 1996, c. 141. 5. Fire Services Act, R.S.B.C. 1996, c. 144. 6. Human Rights Code, R.S.B.C. 1996, c. 210. 7. Labour Relations Code, R.S.B.C. 1996, c. 244. 8. Local Government Act, R.S.B.C. 1996, c. 346. 9. Medicare Protection Act, R.S.B.C. 1996, c. 286. 10. Mental Health Act, R.S.B.C. 1996, c. 288. Read More