There is a very wide range of so-called quasi-judicial bodies which administer various laws in the governmental and public service. They may have many of the characteristics of a court in that they could resolve matters of citizens’ rights. These are typically rights under the statutory schemes provided by the State. In many respects they operate in a similar way to a court.
Tribunals carry out a wide variety of functions. The extent to which their functions resemble those of the court differs. In some cases, they resolve disputes between private citizens. In most cases, the dispute is substantially one between the citizen and the state.
Some tribunals deal with matters of personal liberty in a non-criminal setting. Mental Health Tribunals review decisions on involuntary detention of patients in psychiatric hospitals. The International Protection Office and the International Protection Appeals Tribunal deal with applications for refugee status.
In the taxation sphere the Tax Appeals Commission and Valuation Tribunal determine matters relevant to taxation and rating. In the social welfare sphere, appeals officers hear appeals in relation to social welfare decisions.
The Information Commissioner and the Data Protection Commission determine matters under distinct legislation in the sphere of privacy. (freedom of information and GDPR/ data protection law)
Many tribunals hear appeals in relation to decisions on licensing. They make decisions which are critical to the work and livelihood of regulated businesses. European Union law has led to the creation of the Commissions for Utilities Regulation, Aviation Regulation, Communication Regulation and Public Transport Regulation.
Tribunals adjudicate matters of private rights under the very statutory schemes where it is apprehended that the courts are too inflexible and expensive. This applies in the case of the WRC, Labour Court, Residential Tenancies Board, and the Financial Services and Pension Ombudsman.
Most tribunals are established by law in the context of the relevant scheme of legislation. A handful operates under administrative schemes. The Criminal Injury Compensation Tribunal has never been put on a statutory body notwithstanding the significance of the matters it determines.
There may be a thin line between public and private bodies. Some businesses and professionals are regulated by statutory schemes under which regulators and other bodies are established. Examples include the Medical Council and the Legal Services Regulation Authority.
Other similar professions are not established by statute but are regulated by the rules of their associations. In this case, these bodies straddle the line between public and private laws. However, because their functions impact on livelihood, the courts usually treat them in the same way from the perspective of the judicial review and questions of legality of action taken.
The essence of a tribunal or other equivalent body is that it is independent of the government. The Members are usually appointed by governmental bodies. There has been a more public system of advertisement for vacancies since 2011. The legislation may provide safeguards in relation to their tenure so that in many, if not most, cases, they may not be readily dismissed.
Tribunals and like bodies may be distinguished from administrative sections within Departments or administrative bodies. Administrative bodies may make decisions on entitlements and rights under schemes. They do not act in a so-called quasi-judicial manner. However, many such schemes provide for an appeal against the decision of the administrative body to a tribunal which does act in quasi-judicial matters.
Decisions appropriate for tribunals are more commonly ones that involve determinations of objective facts and the applications of principles to them in accordance with law. Decisions more appropriate to the administration have a higher level of discretionary with a broader less explicit range of criteria. However, many administrative decisions are the subject of an appeal to a tribunal.
In some cases, the nature of the rights being adjudicated upon, and the entity determines whether there an administrative body or tribunal is employed. In other cases, this would be a matter of legislative and administrative history. In some cases, decisions which were in the past taken as administrative decisions are now taken by independent tribunals in the interest of transparency and enhanced citizens’ rights. For example, decisions in relation to detention in psychiatric hospitals were formerly taken by the Department of Justice. They are now taken by an independent review board.
Tribunals are said to be more objective and less subject to changes in the political environment. They may build up their own body of practice and precedents.
Tribunals have some of the characteristics of courts. In that sense, tribunals are intermediate bodies between courts and administrators. They are expressly recognized by the Constitution as bodies exercising “quasi-judicial functions”.
Many tribunals are effectively court substitutes provided given the perceived expense and lack of flexibility of the courts. Generally, lawyers are not required, procedure is less formal, less expensive and more flexible. The body hearing the matter has an expertise in the area and decides the matters concerned on the basis of its own expertise as well as the evidence and information put.
Procedures in tribunals will be more flexible than in courts. However, the courts will require them to apply fair procedures and in accordance with the principles of constitutional justice.
Tribunals are usually less adversarial than courts. In a court, one party is putting forward a proposition and the other party is generally denying it or putting up a counter proposition. In contrast, tribunals may be more inquisitorial.
That is to say that they will focus more on reaching the facts themselves than weighing up the adverse positions on evidence put forward by the opposing parties.
Tribunals are generally more flexible and do not regard themselves as bound by precedents, to the same extent as the court does. Tribunals must apply the law but with boarder latitude. The subject areas typically provide less precise rules than those dealt with by courts.
The modern trend has been to require tribunals to publish their decisions and make them available. Freedom of information laws have had a considerable effect in this area.
Tribunals typically have expertise in the areas in which they determine disputes. This assists speedy adjudication and determination.
Tribunals generally make decisions determined by rules. The degree of subjectivity and discretion within the rules may vary considerably.
Although decisions of tribunals are more inquisitorial than adversarial, constitutional justice will require the opportunity.
- to put one’s case,
- see the opponent’s case,
- challenge the opponent’s case,
- confront witnesses.
Tribunals will not be as independent as courts. The independence of the courts is protected by the Constitution. In contrast, tribunals are usually set up so as to be independent of the administration. The appointee’s independence and immunity from dismissal will vary.
Tribunals may consist of nominees of the Minister and external nominees. Appeal body members will generally be appointed at the senior level as appeals officers. Although the position may be notionally held at the government’s pleasure, it would be politically very controversial to dismiss members of independent tribunal other than for demonstrably valid grounds.
Generally, tribunals are conferred with functions by law which they must exercise in an independent manner.
The constitution provides for tribunals, allowing for quasi-judicial bodies. It provides that justice must be administered by courts established by law by judges. It also provides that limited functions and powers of a judicial nature in matters other than criminal matters may be vested in a body other than a court.
It is unconstitutional to vest the administration of justice in non-court bodies. Disciplinary systems administrated by tribunals have been found unconstitutional where their function has been found to involve the administration of justice. This occurred with the solicitor’s legislation.
The result is that in many professional spheres. disciplinary matters involve an elaborate procedure which is subject to an ultimate determination or confirmation by a court. The tribunal such as the disciplinary section of the professional body may makes a recommendation, but it is ultimately a matter for the court to confirm or dispense with it. The court in recent times has been more willing to accept that disciplinary sanctions need not necessarily constitute the administration of justice.
Tribunals are typically selected by the Minister. They may have a particular term of office. They may be reappointed. There may or may not be qualifications for membership. A tribunal may be comprised of Minister nominees, persons nominated by third parties or having expertise in the area concerned.
Removal from office is generally a matter for the Department/ Minister. Generally, the grounds of removal are limited misbehavior, health or incompetence.
In some spheres, particularly those which relate to regulation of the professions, lay members or members of the consumer interest have been appointed in professional disciplinary proceedings. This is aimed to balance the alleged collegiate bias which may exist or appear to exist in so-called self-regulation, where decisions on complaints are made by members of the same profession.
Within the principles of constitutional justice, many tribunals have powers to summon someone’s witnesses and administer oath. Generally, witness will be examined under oath They may be cross examined depending on the nature of the body concerned.
The relevant body may determine rules and procedure. They may or may not sit in public.
Generally, witnesses in the court and tribunals have the same privileges as witnesses in court cases. They may not be compelled to give evidence which tends to incriminate them. There are cases where they may be compelled but their answer may not be used as evidence against them.
Persons appearing before Tribunals have much of the immunities as witnesses in courts provided that they act in good faith. They are likely to be immune from defamation provided their evidence is no more than necessary.