Britain has built a tribunal system so sprawling and risk-free that it now consumes the very people who should be running organisations, improving products and services and designing more productive companies. What was meant to be a quick, low-cost alternative to the courts has become a parallel bureaucracy that traps skilled workers in disclosure exercises and procedural theatre. A country that spends this much time arguing about the past should not be surprised that it struggles to build the future.
As Robert Colvile and I argue in a new paper for the Centre for Policy Studies, tribunals were originally designed as the escape route – quicker, cheaper, less formal. What we have now is a network of specialist chambers and ombudsmen, thousands of decision-makers, and a calendar filled with sitting days. Every hearing brings with it the familiar procession: HR directors, in-house counsel, external lawyers, union representatives, experts and the claims-management industry. These are people who should be running organisations and improving products and services, not feeding paper into the system.
When the most rational use of scarce managerial and professional time is to minimise exposure to a proliferating network of potentially ruinous hearings, it is hardly surprising that investment and innovation look weak
The Human Rights Act has amplified this shift. By turning a wide range of policy decisions into justiciable ‘rights’, it has ensured that almost any contentious change eventually finds its way to a tribunal. This is the endpoint of a system built on the twin premises that entitlement is sacred and that the state’s duty to provide is unlimited. Article 6 guarantees a fair hearing; Articles 8 and 14 are invoked to challenge everything from welfare rules to housing allocations. What was meant to prevent serious injustice has become a mechanism for turning policy disagreements into litigation. The result is not only delay. It is that the people who might otherwise be improving the system are trapped in disclosure exercises, case management and appeals.
Equal-pay litigation shows the scale of the problem. The doctrine of ‘equal value’ is almost entirely a tribunal creation. These are not small disputes about individual discrimination, but multi-year operations involving thousands of claimants and an entire ecosystem of no-win-no-fee firms. The Next case is a good example: more than 3,500 claimants, no allegation of direct discrimination, and years of job-evaluation analysis to argue that retail and warehouse roles should be paid the same. The headline number – £30 million – is large enough. The uncounted cost is the management time consumed in defending a pay structure that reflects obvious market differences in skill and scarcity.
Local government has already lived through the consequences. Councils such as Birmingham and Glasgow have faced liabilities running into the billions. To meet them, they have sold assets, cut services and raised council tax. Behind those decisions sits a vast administrative effort: HR teams reconstructing decades of pay decisions; legal teams running disclosure; senior managers producing witness statements and case strategies. Every hour spent on that work is an hour not spent improving services or modernising operations.
The incentives built into the structure make this almost inevitable. For claimants and their representatives, the downside risk is minimal; for respondents, the downside is open-ended. Legal aid, conditional-fee arrangements and flat case fees mean that bringing a claim is close to costless, while defending one is always expensive and uncertain. That asymmetry is what allows no-win-no-fee firms to turn equal-pay litigation into a volume business, and what encourages rights-based challenges to almost any policy change. The rational response from employers and public bodies is to settle early, over-insure and divert resources into compliance and legal defence. None of this contributes to productivity. All of it is predictable given the rules.
A serious reform agenda has to begin with the incentives: modest, well-designed fees to discourage speculative claims; automatic cost-shifting when parties ignore clear warnings or reasonable settlement offers; proportionality limits so that low-value cases cannot generate elaborate procedures; and clearer statutory boundaries on how far rights arguments can be stretched in tribunal settings. None of this would abolish tribunals or remove genuine protections. It would reclaim human capital from unproductive process, while returning the system to its original purpose: resolving serious disputes efficiently.
Our report is titled ‘Suffocated by Tribunals’. That isn’t a metaphor. When the most rational use of scarce managerial and professional time is to minimise exposure to a proliferating network of potentially ruinous hearings, it is hardly surprising that investment and innovation look weak. Unless we redesign the incentives that drive claim after claim, we will go on wondering why Britain’s productivity refuses to recover.
‘Suffocated by Tribunals’ is published by the Centre for Policy Studies.
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