A New Tribunal System for Wales: white paper - Chapter 1: Introduction

1. This white paper sets out the Welsh Government’s aims to reform the devolved tribunals and to create a First-tier Tribunal for Wales divided into chambers and an Appeal Tribunal for Wales.

2. The Commission on Justice in Wales, which issued its report in October 2019 (Justice in Wales for the people of Wales), and the Law Commission have both concluded the system of devolved tribunals in Wales requires reform. The Law Commission review focused in-depth on the reform of devolved tribunals, and its report (Devolved Tribunals in Wales), published and laid before the Senedd in December 2021, set out 53 recommendations which together made up a blueprint for a modern, unified and coherent structure for tribunals in Wales (the Law Commission recommendations are set out in Annex 2 to this white paper).

3. The Law Commission consulted on its findings and proposals between 16 December 2020 to 19 March 2021. The review found that the current legislation relating to the devolved tribunals is unfit for purpose and that a unified tribunal service should be created.

4. In this paper, we draw upon the Law Commission’s review and have undertaken further analysis where this was appropriate. This paper is supported by an integrated impact assessment, which provides a summary of the impacts of the proposals. This will be developed further alongside the legislation that will be required to implement reform.

5. The body of devolved tribunals in Wales are characterised by their piecemeal development over many years spanning the pre and post devolution periods. A number of our devolved tribunals were initially established before devolution by the then government for the United Kingdom and were administered by the departments that had established them. The Mental Health Review Tribunal for Wales, for example, was administered by the Health Department of the Welsh Office.

6. The Government of Wales Act 1998 devolved certain subject fields to the National Assembly for Wales, including functions for tribunals associated with those fields. Principally, this was because tribunals were then seen as being a function of the executive arm of government, established by government departments they were created to serve, rather than a judicial function.

7. In recognising that tribunals carry out judicial functions, steps have been taken to separate the devolved tribunals from the areas they are designed to exercise judgment over. The post of the President of Welsh Tribunals, the first senior judicial role relating solely to Wales, was created by the Wales Act 2017 to provide judicial leadership over a grouping of tribunals defined as the “Welsh Tribunals” (Section 59(1) of the Wales Act 2017). There are other tribunals, however, that operate in Wales, in devolved fields, but are not defined as Welsh Tribunals, and which fall outside the remit of the President of Welsh Tribunals.

8. In terms of the Welsh Tribunals, administrative steps have been taken to ensure day-to-day operational responsibilities are separate from the Welsh Government’s policy functions through the creation of a Welsh Tribunals Unit. The unit is responsible for administrative and operational support to the Welsh Tribunals. But structurally, the Welsh Tribunals Unit is part of and is embedded in Welsh Government.

9. The current approach has been made to work. We are not aware of any significant practical concerns about the effectiveness or fairness of the Welsh Tribunals. However, the existing arrangements are clearly not optimal. The legislation governing each tribunal in Wales does not recognise the way we treat them today. Consequently, we have a set of individual tribunals we are treating as a group or a unit, which were never intended to exist in anything other than in isolation.

10. The proposals set out in this white paper are informed by a significant body of work and by the reform undertaken in other jurisdictions, most notably:

1. the report by Sir Andrew Leggatt ("the Leggatt Report") and proposals for reform for tribunals in England and Wales, excluding devolved tribunals, were enacted by the Tribunals, Courts and Enforcement Act 2007 to put in place a unified First-tier Tribunal and an appellate Upper Tribunal, each divided into chambers
2. the Administrative Justice and Tribunals Council (“the AJTC”) Welsh Committee review of tribunals operating in Wales (Administrative Justice and Tribunals Council Welsh Committee (2010) Review of Tribunals Operating in Wales, implementation of which the Welsh Government reviewed in 2014)
3. the Committee for Administrative Justice and Tribunals Wales (“the CAJTW”) report on the administrative justice landscape in Wales (Administrative Justice: A Cornerstone of Social Justice in Wales)
4. the Commission on Justice in Wales report (Justice in Wales for the people of Wales), and
5. the Law Commission report (Devolved Tribunals in Wales).

11. The AJTC called for a consistent and unified approach across devolved tribunals, a recommendation echoed by its successor body the CAJTW which called for a standardised procedure for appointments, as well as a senior judicial lead for devolved tribunals. Some progress has been made, as set out in paragraphs 8 and 9 above. However, more can be done, and reform is needed.

12. The tribunal system in Wales provides a commendable service to the people of Wales, but the legislative frameworks which underpin it are outdated, inflexible and lack coherence. Work arounds have been found for various issues, but they are a sticking plaster rather than a cure. A clearer, simpler, more effective and coherent way of operating Wales’ tribunal system is essential to the cause of delivering justice for the people of Wales.

13. A reformed tribunal system will provide a solid foundation for future change and devolution of justice functions to Wales. This is not about a one size fits all approach, but a unified system capable of accommodating differences between jurisdictions.

14. Similar processes of reform have already been undertaken in the other nations of the UK, where there is a greater degree of devolution and a longer history of responsibility for their own legal institutions and infrastructure. In following in the footsteps of other parts of the UK, Wales can learn from their successes and also in some areas go further to promote the fair, effective and independent delivery of justice.

15. We propose to create a modern, structurally independent and unified system to absorb the jurisdictions of existing devolved tribunals, and to take on further functions over time. Our proposals are to create a single First-tier Tribunal for Wales divided into chambers, and an Appeal Tribunal for Wales. This will enable the tribunal justice system in Wales to better accommodate developments arising from future legislation, creating a structure that is flexible by design and capable of absorbing new jurisdictions with relatively little disruption.

16. The main proposed elements of our reform agenda are:

1. a statutory framework for a single, unified and coherent tribunal system organised by type of jurisdiction with clear and consistent onward rights of appeal and capable of accommodating additional jurisdictions over time
2. statutory duties to uphold the independence of the new tribunal system and greater structural independence for the way in which it is administered
3. judicial leadership for the new tribunal system under the aegis of the President of Welsh Tribunals and Chamber Presidents and Deputy Presidents
4. clear and efficient processes for setting procedural rules for the new tribunal system, and
5. consistent arrangements for appointing tribunal members and clear processes including for determining remuneration, deployment and dealing with complaints and/or disciplinary matters.

17. The chapters that follow set out our proposals in more detail.