Report No. 162
Administrative Remedies in Other Countries and in India Part I
3.1. A study on the tribunals will be incomplete unless the position of administrative remedies in other countries is adverted to. At the same time, the attempts to reform made in the past in India need to be referred to for taking into consideration the broader perspective of the situation.
3.2. Franks Committee Report and Committee on Minister's power (U.K.).-The Franks Committee-In 1955, the United Kingdom Parliament, established the Committee on Administrative Tribunals and Enquiries, usually known as the Franks Committee, to examine the process of administrative adjudication. The basis for the setting up of this Committee was the anxiety of all political parties, prompted largely by the Crichel Down affair [Crichel Down Enquiry (Cmd. 9176) (1954)1, as to the need to protect the citizens in relation to administrative action.
The Committee's general recommendations include an appeal on fact, law and merits from an administrative tribunal of first instance to an appellate tribunal (other than a minister himself), except where the tribunal of first instance is exceptionally strong and well qualified. Further, an appeal on a point of law should lie, with certain exceptions, to the ordinary court's machinery, for such appeals should be simple, cheap and expeditious. The Committee also recommended that no statute should contain words purporting to oust the remedies by way of certiorari, prohibition and mandamus.
The most important recommendation was the proposal that there should be set up a Council on Tribunals for England, (and a separate Council for Scotland), the members of which should be appointed by and responsible to the Lord Chancellor. The Council would suggest how the Committee's more detailed recommendations as to the constitution, organisation and procedure of tribunals should be applied to existing tribunals, and keep tribunals under continuous review and advise on the constitution and procedure of any proposed new type of Tribunal (Principles of Australian Administrative Law by D.G. Banjafield and H. Whitmore, 4th Edn., pp. 333, 336).
It would be beneficial to extract the relevant passage from D.C.M. Yardley in his book on Principles of Administrative Law, (1981), pp. 198-201 regarding the extent of implementation of these two reports:-
"The two major legislative achievements of the Franks Report were the creation of the Council on Tribunals and the institution of appeals on law from many tribunals direct to the Divisional Court. But there were many other marked effects upon the whole flavour of the system of administrative tribunals and inquiries. The great majority of the ninety-five detailed recommendations of the Committee were promptly accepted by the Government of the day, and a number of others were later accepted either in whole or in part.
Only a mere handful were in the end rejected or simply not carried into effect. But as many of the recommendations which were accepted were on matters of detail, rather than principle, it was possible to implement them without resorting to legislation. For example, the recommendation that all chairmen of rent tribunals should have legal qualifications has been effected as a matter of practice without altering either the primary or the secondary legislation concerning the tribunals.
Again, the emphasis placed by the Committee upon the requirements of openness, fairness and impartiality has been reflected usually not in subsequent legislation, but by a change in general attitude by those tribunals which had not previously appreciated the full import of these characteristics the statutory instrument which governs the procedure of rent tribunals dates from 1946, though it has since been amended in some respects, and that instrument permits tribunals to sit either in private or in public at their own discretion.
Before the Franks Committee Report it was quite common for rent tribunals to sit in private, and to exclude the press, but since the Franks Report Chairmen of rent tribunals have realised the importance of sitting in public unless there is some really compelling reason to sit in camera. Accordingly, it is now common practice to sit in public unless persuaded to do otherwise by the principles already stated.
A host of other reforms have been achieved by changes of administrative practice. Many of these are concerned with the detailed procedure of individual tribunals or types of inquiry, and need not be considered here. But among the most prominent we may perhaps list three:
(a) Appellate tribunals now customarily publish selected decisions as guidance both for themselves in later cases and for first instance tribunals. Thus decisions of rent assessment committees are circulated to all members of the relevant panel, and to all rent officers within the panel area. Also, and perhaps of greatest importance in this context, the decisions of the Social Security Commissioners are published by Her Majesty's Stationery Office and circulated to all local insurance officers, all Chairmen of local tribunals, and to selected libraries.
These decisions, though not of quite the same binding precedent value upon other tribunals in the social security field which would attach to a decision of the High Court, are nevertheless considered by local insurance officers and local tribunals as generally binding upon them, so that a consistent body of social security tribunal case law is built up.
Furthermore, a highly authoritative Digest of Commissioners' Decisions' compiled by a retired National Insurance Commissioner, Mr. Desmond Neligan OBE, and also published by the Stationery Office, is of the greatest assistance in helping to establish this consistent body of precedent. The Digest is kept up to date by a regular loose-leaf service.
(b) Legal representation is allowed before almost all tribunals, but it is a matter for each party whether he avails himself of such representation. The Franks Committee had recommended that the legal aid scheme should be extended to the more formal or expensive tribunals, and to final appellate tribunals. The right to legal representation is generally recognised, and is sometimes specifically stated in rules of procedure. Also the legal advice scheme has been progressively extended in the years since the Franks Report so that it is now available to cover advice before hearings in any tribunals.
But the scheme has not yet been generally extended to cover the cost of legal representation. This may well be largely because of the cost to the public purse which it would entail. But other reasons probably include doubts about whether solicitors, who would be the more likely practising lawyers to appear at most inferior tribunal hearings, are adequately equipped to cope with the specialist law which is dealt with.
Certainly in proceedings before tribunals in the social security field the experience of the present writer as chairman of a local tribunal suggests that trade union officers usually make more effective advocates for appellants than do lawyers. So parties are welcome to retain lawyers to represent them in almost all tribunal proceedings, but normally only at their own expense.
(c) Chairmen of tribunals must usually now have legal training, and must normally be selected by the appropriate Minister from a panel of persons appointed by the •ord Chancellor, or in Scotland by the Lord Advocate. This helps to ensure that the person who chairs any tribunal proceedings is qualified to appreciate the importance of a full disclosure of all material facts to all parties before the hearing takes place and that an adequate opportunity is given to all parties to attend the hearing (and any inspection which may be involved).
Furthermore, the legal qualifications of the chairman should help to ensure that a proper watch is kept from the chair to see that the rules of natural justice are followed in the course of the hearing, and that any questions are put from the chair to parties to elicit facts or arguments which are relevant, but which may not have been sufficiently presented without such prompting. This latter function of a chairman probably more than makes up for any absence of actual legal representation of a party at the hearing.
the overall effect of the publication of the Report of the Donoughmore-Scott Committee on Ministers' Powers was to remove the great majority of the previous fears and apprehensions about delegated legislation; but it took many years for this effect to be appreciated, and decades before Parliament acted upon any of the Committee's detailed recommendations. The effect of the Franks Report was far more immediate.
The first Tribunals and Inquiries Act received the Royal Assent only a year after the Report was published, and indeed a number of the administrative changes recommended by the Committee were already in train by that time. The overall effect upon the climate of opinion was also much quicker, and by the time the Council on Tribunals embarked upon its work in 1959 there was already a general belief that any defects were being ironed out."
It is pertinent to quote from the relevant passage of H.W.R. Wade in his book, The Administrative Law, 7th Edn., pp. 915-920 regarding radical recommendations made by the committee and the extent of reforms carried out legislatively:-
"The reforms of 1958
The Tribunals and Inquiries Act, 1958 (U.K.) gave effect to the policy of the Franks Committee's report, though with some variations in detail. The Act was short and did not present the whole picture, since important reforms were also made by changes of administrative regulations and practice. It has now been replaced, first, by the Tribunals and Inquiries Act 1971, and now, by the Tribunals and Inquiries Act 1992 both of which are consolidating Acts which make no change of substance.
The Act of 1958 provided first for the Council on Tribunals. It has a maximum membership of sixteen; but there is special provision for a Scottish Committee of the Council, consisting partly of persons not members of the Council itself. The Council emerged as a purely advisory body, without the function of appointing tribunal members, but with general oversight over tribunals and inquiries. The tribunals under its superintendence were listed in a schedule, which included the great majority of those considered by the Committee.
It was probably right that such a body, which is intended to be a watch-dog and independent of ministerial control, should not be given executive functions; it was designed to bark but not to bite. It is not, therefore, a court of appeal, or a council of state on the French or Italian Model. But it has to keep under review the 'constitution and working' of the listed tribunals, and report on any other tribunal questions which the government may refer to it.
In practice, it receives complaints from individuals and invites testimony from witnesses. It is also frequently consulted by government departments in the ordinary course of their work. Its annual report must be laid before Parliament. It is specifically empowered to make general recommendations as to the membership of the listed tribunals, and it must be consulted before any new procedural rules for them are made. Some particulars of the Council's work will be found below.
As the Franks Committee had recommended, the Council on Tribunals consists partly of lawyers and partly of lay members, the lay members being in the majority. The purpose of the lay majority is to make sure that the Council's guiding principle shall be the ordinary man's sense of justice and fair play, freed so far as possible from legal technicality. The membership comprises wide experience in industrial, commercial and trade union affairs, as well as administrative experience contributed by eminent retired civil servants.
This structure has both advantages and disadvantages. Although much of the Council's work, such as the letting of Bills in Parliament and procedural regulations, requires the aid of lawyers, its policy is to evolve and maintain the standards which the public demands of tribunals, rather than to copy the practices of the established courts of law. But naturally the elements of substantial justice are to a large extent the same in both systems.