It is a truism that administrative tribunals determine a vastly greater number of legal challenges against governmental decisions than do the courts. It is also the case that – paradoxically – the habitual preference of administrative law scholars has long been to devote their energies principally to the analysis of judicial review of administrative action and to overlook tribunals. This book by Peter Cane represents the efforts of a distinguished scholar to overcome his previous attempts to ignore the role and significance of tribunals, a position which Cane now accepts to be “an extremely unsatisfactory state of affairs” (viii–ix). The broad aim of the book is then to provide a constitutionally-based theoretical account of the nature and role of tribunals and to explore some aspects of the relationship between their practical operations and their theoretical importance. This analysis is supplemented by an historical and comparative analysis of the development and current systems of tribunals in four jurisdictions – Australia, the UK, the US, and, to a lesser degree, France.
The book is clearly and elegantly structured into seven chapters each analysing a different aspects of tribunals. Following an introductory “survey” chapter, there are six subsequent chapters – “History”, “Models”, “Form”, “Function”, “Purpose”, and “Landscape”. To understand the work of tribunals, Cane distinguishes between implementation, the promotion of social interests, and adjudication, which favours the promotion of individual interests. The determination of appeals against initial administrative decisions by tribunals – known as merits review in Australia – is a form of adjudication rather than implementation and this distinction helps to explain various aspects of tribunals, such as their independence from government.
As regards the history of tribunals, Cane places their development against the background of the social and economic changes that produced the development of the administrative state from the 1830s onwards. Interwoven with this is a discussion of the scholarly reaction to the emergence of tribunals and the development from embedded to independent adjudication. The book's comparative analysis proceeds by identifying the models of administrative adjudication in four jurisdictions considered (the omission of Canada seems odd given the scholarly attention that tribunals there appear to attract). The book then proceeds to examine aspects of tribunal form, such as membership, appointments, the law governing merits review in Australia's Administrative Appeal Tribunal. The final two chapters examine the purpose of tribunals as institutions delivering administrative justice and their place within the broader landscape on accountability institutions whose role is to hold government to account.
The strengths of the book are numerous and are to be found principally in the subtle blend of different types of analysis – constitutional, historical and comparative – used to appreciate the role and significance of tribunals. For Cane, tribunals are not simply pragmatic devices to resolve disputes between individual and state, but comprise an important position within a broader constitutional structure. Tribunals are therefore worthy objects of study from which wider insights can be drawn about constitutional structure. The book examines most of the current issues and debates concerning tribunals: their procedures; specialist versus generalist justice; the normative influence of tribunals upon initial administrative decision-making; and the relationship between tribunals and the courts. Overall, Cane presents a very scholarly and well-informed synthesis of three dimensions of tribunals: their functions across four jurisdictions, their historical development, and their constitutional significance.
Inevitably, there are some drawbacks to pursuing this type of wide-ranging analysis. One shortcoming is that because of the width of perspective, it is difficult to gain much insight into how individual tribunal systems work and their influence upon particular administrative processes. After all, tribunals operate in specialist sub-systems of administrative law – social security, tax, education and so on – and comprise an important segment of the broader administrative process operating in those contexts. For instance, significant changes to the UK tribunal system – the development of a system of tribunal precedent and the willingness of the higher courts to understand their relationship with the Upper Tribunal in anti-hierarchical terms – can really only be explained by reference to factors specific to particular tribunal contexts, in particular social security and immigration and asylum.
Another shortcoming is that Cane adopts a principally analytical, legal approach and the book makes surprisingly little use of the large body of socio-legal research undertaken into tribunals. Indeed, sometimes the book reads as if it has been written without a full appreciation of the realities of tribunal life. For instance, the long discussion of the legal jurisdiction of merits review is somewhat removed from what most tribunals actually do; the bulk of first-tier tribunals are overwhelmingly concerned with fact-finding and their work is influenced by a complex variety of non-legal considerations. In reality, caseload and legal aid funding and other factors exert enormous influence upon how tribunals work in practice, but Cane's analysis tends to underplay the influence of policy and institutional forces.
Thirdly, this reviewer for one was less convinced by the distinction Cane draws between implementation and adjudication. Assimilating initial administrative decision-making with implementation and tribunals with adjudication tends to overlook the fact that by adjudicating upon disputes between individuals and administrative agencies, tribunals are one amongst many ways of implementing policy. If so, then it may be too simplistic to state, as Cane does, that implementation tends to favour the promotion of social objectives whereas adjudication tends to favour the promotion of individual interests. Tribunals do not allow appeals just to promote individual interests. Instead, they are trying to make correct decisions concerning appellants' eligibility under government programmes which implement the underlying administrative policy. To be sure, Cane notes that implementation and adjudication are essentially the same function performed to different ends and with a different point, but this seems at odds with his earlier point that there is a significant contrast between adjudication and implementation.
Putting these caveats to one side, this book is very much to be welcomed as an excellent addition to the literature. It provides a valuable and wide-ranging study of an important but long neglected set of institutions and it should encourage administrative law scholars to pay much more attention to the work of tribunals.
