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.
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
 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
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.
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 clausesprovisions 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 http://www.tribunals-review.org.uk/. Back
The full text of draft clause 23 is reproduced at Appendix
2 below. Back
Clause 2(3)(d). Back
On post-legislative scrutiny see the recent report by the Law
Commission, Post-Legislative Scrutiny (Law Com No 302,
Cm 6945). Back
Paragraph 6.41. Back
Paragraph 4.21. Back
Paragraph 6.20. Back
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
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