Franks Report (1957)

The Franks Report of 1957 ^[1] was issued by a British committee of inquiry chaired by Sir Oliver Franks in respect of growing concerns as to the range and diversity of tribunals, uncertainty about the procedures they followed and worry over lack of cohesion and supervision. The catalyst for this was the Crichel Down Affair.^[2] However, this was a result of a decision by the British Government and the Franks committee was told to limit its discussion to formal statutory procedure and not to go into decisions of the courts or one-off decisions, which excluded the Crichel decision.

Contents 1 Basic assumptions of the report 2 Aims and recommendations 2.1 Constitution of tribunals 2.2 Procedure of tribunals 2.3 Appeals from tribunal decisions 3 Tribunal procedures 4 Achievements 5 References

Basic assumptions of the report

Tribunals are an adjudicating, rather than administrative, body and they should be fair, open and impartial.^[3] Openness is for publicity of proceedings and the reasoning behind the decision. Fairness through having a clear procedure, allowing participants to present their case fully and knowledge of requirements to meet for parties. Impartiality established from independence from the real or apparent influence of the administration.

Aims and recommendations

Constitution of tribunals

Chairman to be chosen by the Lord Chancellor, normally having legal qualifications for trial and mandatory for appellate tribunals. Rest of members to be chosen by the Council of Tribunals.

Procedure of tribunals

The Council of Tribunals should direct the particular procedure in each case, with the aim of combining order with an informal atmosphere. Citizens should have a prior knowledge of the right to apply to participate and public knowledge of the proceedings unless the content is of sensitive nature, with legal representation normally allowed. Tribunals empowered to take evidence under oath, subpoena witnesses and award remedies. Decisions should give full reasons and a copy sent to all parties. Final appellate tribunal to publish its decision for lower tribunals.

Appeals from tribunal decisions

Appeal in the first instance should be to an appellate tribunal, but never to a minister unless the First Instance tribunal is highly competent. Common law remedies of Certiorari (direction to send records), mandamus (mandatory order) and writ of prohibition (abstain a court where it lacks competence) should never be restricted. Also the report recommended that a Councils of Tribunals be formed to perform their respective role as envisaged in the report.

Tribunal procedures

• The 1957 Franks Committee on 'Administrative Tribunals and Enquiries' identified certain characteristics that should be reflected in tribunal procedures, which remain important today. These were openness, fairness and impartiality.
• Since tribunals are established to provide a form of redress, mostly in disputes between citizen and the State, the Council believes that the principal hallmark of any tribunal is that it must be independent, and perceived as such.
• The tribunal should be able to reach decisions according to law without pressure either from the body or person whose decision is being appealed, from any party to a dispute or from anyone else.
• Judicial decisions should be uninfluenced by other external considerations.
• Procedures should be open to scrutiny if they are to retain public confidence; they should provide a fair hearing at which citizens can state their case and be informed of all the evidence; tribunals should reach their decisions demonstrably free from all personal interest and bias.
• Tribunal hearings should be open and fair, which must be available to all sections of the community in our society.
• Tribunals should be independent and provide open, fair and impartial hearings
• Tribunals should be free to reach decisions according to law without influence (actual or perceived) from the body or person whose decision is being challenged or appealed, or from anyone else.
• Judicial officers should be independent.
• Procedures of selection and appointment of Tribunal members should be fair and independent of related departments of government and other interested parties. NB: Overruled in the creation of the Ministry of Justice.
• Procedures should ensure conflicts of interest are identified and avoided.
• Hearings should normally take place in public, although a private hearing should be provided in appropriate circumstances.
• At the hearing, the identity of tribunal members to be communicated to the parties.
• Hearings should be conducted with an appropriate degree of informality, and the necessary steps taken to ensure all relevant issues are explored.
• Appropriate guidance about evidence and procedures should be given at hearings especially where individuals have no legal representation.
• Special procedures should be provided for hearings involving vulnerable groups.
• The parties should be accorded equal status.
• If the hearing proceeds in the absence of a party, or his representative, the tribunal should nevertheless seek to ensure that that party's case is fully considered.
• Decisions should be soundly based on the evidence and relevant law; they must be supported by reasons, explained clearly to the parties, and if given orally confirmed in writing; reasons should identify findings of fact, apply relevant law and explain the decision.
• Tribunals should be accessible to users and focus on the needs of users.
• Potential users of the tribunal should be given access to information about its services, and where previous decisions of the tribunal are recorded.
• Makers of decisions from which there is a right of appeal to a tribunal, should be obliged to inform those affected by decisions of the right of appeal, and how a guide to such rights and procedures can be obtained.
• Papers required by tribunals to be proportionate, and appropriate to issues at stake.
• Users should be able to understand: what papers they have to provide; what papers the other party will provide; what additional papers the other party can be required to provide.
• Provision should be made for users with special needs.
• There should be a clear time limit for lodging of all papers.
• Tribunals to provide clear information about how their case will be handled.
• Users should be clearly informed about what is expected of them, what they have to provide, what will happen at a hearing, and the circumstances in which to make a claim.
• Users should be able to find out about the progress of their case, and how long they are likely to have to wait for a hearing or decision.
• The tribunal's decision should be accompanied by information about appeal rights.
• A complaints policy and procedure should be in place in relation to the performance of both judiciary and administration, and be publicised to users.
• Tribunals should establish and publish a clear policy on equal treatment, and continuously monitor compliance.
• Tribunals should offer cost effective procedures and be properly resourced and organised.
• Judicial resources should be managed to provide a good service, and to ensure that individuals sit often enough to maintain knowledge and skills.
• Standards for judicial behaviour and performance should be set and monitored.
• Outstanding cases should be collected and monitored.
• Standards for hearing venues, and for service, and performance should be set and monitored, in consultation with users.
• Appropriate planning and monitoring procedures should be in place.
• Data about patterns in the caseload (errors in first tier decision making, cost of cases going to judicial review etc.) should be collected and monitored.
• Administrative processes should be responsive to the needs of those who wish to use them.
• The reference to "judicial office" is intended to include all tribunal Chairs and members who exercise judicial powers.
• All hearings should be in public; except that the press or public may be excluded from all or part of the hearing in the interests of morals, public order, national security, or where the interests of the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the tribunal in special circumstances where publicity would prejudice the interests of justice.^[4]
• The Tribunal chairman may ask anyone giving evidence to give evidence on oath.^[5]

Achievements

Most of the recommendations were implemented by the Tribunals and Inquiries Act 1958 and Tribunals and Inquiries Act 1992; others were implemented by administrative practice.^[6]

Working and number council of tribunal was mentioned in the schedules, with their function being advisory, but they could make recommendations on any matter and had to be consulted before any rule was enacted.

Right to give reasons was added, but it had to be asked for before or during the decision, and judicial review restricted the right in a few instances. List of tribunals could be stopped by ministerial power.

The report’s recommendations were not followed where appeals to the High Court (Court of Session in Scotland) were only permitted based on law and the procedure to appoint chairman and members.

References