A New Tribunal System for Wales: white paper - Chapter 2: Scope of our reforms

We propose the scope of our proposals to create a unified and coherent tribunal system for Wales extends to “the devolved tribunals” in Wales as defined by the Law Commission’s review of devolved tribunals in Wales.

18. Our proposals are aimed at improving and regularising the structure and operation of the devolved tribunals in Wales. This not only applies to those tribunals that are currently referred to in law as “the Welsh Tribunals”, but other devolved tribunals in Wales too. This will strengthen the system of devolved tribunals under the leadership of the President of Welsh Tribunals.

19. Being clear as to what is, and what is not, a tribunal is a first step towards identifying what functions should come within the scope of a modern tribunal system. In the future some functions currently undertaken elsewhere will move into the tribunal system, and some functions currently undertaken by tribunals may move into other forums for dispute resolution; but our starting point must be to look at the existing functions of devolved tribunals, and ensure they are undertaken as effectively as possible.

20. There is no single, generally accepted definition of a “tribunal”. The Law Commission identified the general characteristics of “tribunals”, namely that they are bodies that hear disputes between parties and adjudicate upon them by making binding decisions. The Law Commission concluded that devolved tribunals were those that fell within the definition of “devolved tribunal” as set out in paragraph 9(2) of Schedule 7A to the Government of Wales Act 2006, namely a tribunal all of whose functions are exercisable only in relation to Wales and do not relate to reserved matters.

21. Based on its analysis, the Law Commission considered those bodies that fell within, and consequently fell without, the scope of their review of devolved tribunals in Wales.

22. We generally agree with the Law Commission as to those bodies that are devolved tribunals and are therefore in scope as existing devolved tribunals, namely:

1. the Agricultural Land Tribunal for Wales
2. the Mental Health Review Tribunal for Wales
3. the Residential Property Tribunal for Wales (with 3 constituent tribunals: residential property; leasehold valuation; and rent assessment committees)
4. the Education Tribunal for Wales (also managing the jurisdictions of tribunals constituted to hear appeals relating to the registration of school inspectors and nursery education inspectors)
5. the Adjudication Panel for Wales
6. the Welsh Language Tribunal
7. the Valuation Tribunal for Wales
8. school admission appeal panels and
9. school exclusion appeal panels

23. The tribunals at sub-paragraphs (a) to (f) above are, collectively, defined as “the Welsh Tribunals” by section 59 of the Wales Act 2017, under the President of Welsh Tribunals who has powers relating to training, guidance and welfare. The tribunals at sub-paragraphs (g) to (i) above are devolved tribunals falling outside of the President’s supervisory oversight. Annex 3 sets out further detail about the constitution and history of each of these devolved tribunals which we consider fall within the scope of this tribunals reform project.

24. We agree with the Law Commission as to those bodies that are not devolved tribunals because they make recommendations rather than binding decisions, they do not follow an adjudicative process and/or their functions are not only exercisable in relation to Wales. The Law Commission identified ombudsmen (including the Public Services Ombudsman for Wales), the Planning Inspectorate (whose functions in Wales transferred to Welsh Government on 1 October 2021 and are dealt with by a division called Planning and Environment Decisions Wales / Penderfyniadau Cynllunio ac Amgylchedd Cymru), continuing NHS health care review panels, and Forestry Committees for Wales.

25. Our one point of difference is with the Law Commission's conclusion that Social Care Wales panels are “devolved tribunals” for the purposes of the tribunal reform project. Our view is that these panels are part of the internal mechanisms in place to ensure Social Care Wales makes fair and balanced decisions on registration-related issues, which decisions are subject to a route of appeal to the UK First-tier Tribunal (Part 8 of the Regulation and Inspection of Social Care (Wales) Act 2016).

26. In addition to existing devolved tribunals we consider to be in scope, our intention is to ensure the new tribunal system is flexible and able to accommodate future jurisdictions that should or could be undertaken by a tribunal. We consider the proposed structure for the new tribunal system in Chapter 3 and in Chapter 4 we consider the jurisdictions transferring into the new system.