A New Tribunal System for Wales: white paper - Chapter 7: Appointments and deployment

We propose:

• a coherent approach for the appointment of members to the First-tier Tribunal for Wales and the Appeal Tribunal for Wales
• in making appointments there should be regard to the need to encourage diversity in the range of persons appointed as members of the First-tier Tribunal for Wales and the Appeal Tribunal for Wales
• terms and conditions, including remuneration, to be set by the Welsh Ministers, and
• a system for the effective deployment of tribunal members across the new tribunal system.

129. We set out in Chapter 5 our proposals to support judicial independence in the new tribunal system. With independence comes accountability, and these are not incompatible propositions. The Judicial Executive Board has summarised judicial accountability as follows:

Individual judges are subject to a strong system of internal accountability in respect of legal errors and personal conduct…[and] are accountable to the public in the sense that in general their decisions are in public and are discussed, often critically, in the media and by interest groups and sections of the public affected by them. The judiciary is similarly institutionally accountable in respect of first instance and appellate decisions.

Neither individual judges nor the judiciary are, nor should they be, accountable to the executive branch of the state because that is inimical to the judicial independence which is a necessary requirement for the discharge by judges of their core responsibility to resolve disputes fairly and impartially. (The Accountability of the Judiciary)

130. Judicial independence and accountability operate in balance. Whilst current appointments for Welsh Tribunal members follow transparent selection processes, the legislation for appointments is inconsistent. A coherent approach to the appointment of members to the First-tier Tribunal for Wales and the Appeal Tribunal for Wales, resulting from clear and transparent selection processes, will contribute to this balance. Our proposals for appointments to the new tribunal system are therefore guided by the following principles:

1. processes and procedures should protect the independence of tribunal members and the new tribunal system
2. there should be consistency of appointing authority to ensure fairness, and
3. appointments should be underpinned by clear and transparent selection processes.

131. Responsibility for, and the process of, appointing members to devolved tribunals is inconsistent. This is one of the products of the piecemeal development of the Welsh Tribunals and it has arisen not because of policy decisions to treat appointments across tribunals in different ways, but instead largely because of the passage of time and as thinking about the judicial nature of tribunals has developed. Different procedures apply again to members of the VTW and school admission and exclusion appeal panels.

132. The current arrangements for appointments to the devolved tribunals, including for the office of President of Welsh Tribunals, are set out in the table below:

Appointments

President of Welsh Tribunals

Legislation: Section 60 of and Schedule 5 to the Wales Act 2017

Appointing authority: Lord Chief Justice, consultees - Lord Chancellor, and Welsh Ministers.

Adjudication Panel for Wales

Legislation: Section 75 Local Government Act 2000

Appointing authority: Welsh Ministers

Agricultural Land Tribunal for Wales

Legislation: Section 73 of Schedule 9 to the Agriculture Act 1947

Appointing authority: Lord Chancellor

Educational Tribunal for Wales

Legislation: Section 91 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018

Appointing authority: Lord Chancellor appoints the President, and the legal chair panel.

Welsh Ministers appoint lay panel with the agreement of the Secretary of State and the President.

Mental Health Review Tribunal for Wales

Legislation: Section 65 of and Schedule 2 to the Mental Health Act 1983

Appointing authority: Lord Chancellor

Residential Property Tribunal for Wales

Legislation: Section 229 of the Housing Act 2004, section 173 of the Commonhold and Leasehold Reform Act 2022 and Schedule 10 to the Rent Act 1977

Appointing authority: Lord Chancellor appoints legal members. Welsh Ministers appoint other members, Vice President, and President from the persons appointed by the Lord Chancellor.

Welsh Language Tribunal

Legislation: Section 120 of and Schedule 11 to the Welsh Language (Wales) Measure 2011

Appointing authority: Welsh Ministers

Valuation Tribunal for Wales

Legislation: Regulations 9, 11 and 12 of and Schedule 2 to the Valuation Tribunal for Wales Regulations 2010

Appointing authority:

Appointments Panel of the VTW’s Governing Council:

• Members
• Chairpersons

Election by ballot of full VTW membership:

• President

Note: The Welsh Ministers hold default powers if the above appointments are not made within 3 months of a vacancy.

School admission

Legislation: The Education (Admission Appeals Arrangements) (Wales) Regulations 2005

Appointing authority: Local authority or governing body must appoint either 3 or 5 members to each appeal panel

School exclusion

Legislation: The Education (Pupil Exclusions and Appeals) (Maintained Schools) (Wales) Regulations 2003

Appointing authority: Local authority must appoint either 3 or 5 members to each appeal panel.

133. With limited exceptions (see Chapter 6: The President of Welsh Tribunals, paragraph 112), the President of Welsh Tribunals does not have responsibilities for appointments to the Welsh Tribunals. The current limited judicial involvement in and oversight of appointments to devolved tribunals contrasts with the position in the England and Wales system and in Scotland, and the functions conferred respectively on the Senior President of Tribunals (^{Footnote 1}) and on the Lord President and President of Tribunals (^{Footnote 2}).

134. The Law Commission’s recommendations for reform of existing appointments processes propose new appointing authorities for the First-tier Tribunal for Wales and the Appeal Tribunal for Wales (see Annex 2, Law Commission recommendations 31 to 37). These can be summarised as follows:

1. except for Chamber Presidents and Deputy Presidents, members of the First-tier Tribunal for Wales to be appointed by the President of Welsh Tribunals, and
2. Chamber Presidents and Deputy Presidents of the First-tier Tribunal for Wales and members of the Appeal Tribunal for Wales to be appointed by the Welsh Ministers with the concurrence of the President of Welsh Tribunals.

135. We agree with the principle of the Law Commission’s proposals. The responsibilities of appointing authority could be conferred on the Welsh Ministers, as recommended by the Law Commission, or on a specific minister such as the First Minister or Counsel General. Under current arrangements, appointing responsibilities for some of the Welsh Tribunals sit with a specific minister (the Lord Chancellor) who has specific statutory duties with regard to the independence of the judiciary. Generally, functions are not imposed on individual Welsh Ministers.

136. We consider a coherent approach to appointments across the new tribunal system, particularly the enhanced role for the President of Welsh Tribunals, will contribute to judicial independence. Under these proposals, no appointments will be able to be made without judicial involvement, in the shape of the President acting as appointing authority or concurring to appointments where the Welsh Ministers act as appointing authority.

137. Of course, whoever is the appointing authority, the most important element is that appointment decisions should be based on recommendations resulting from clear and transparent selection processes. The Judicial Appointments Commission (“the JAC”) is a statutory body and has responsibility for selecting people for judicial appointments to the Welsh Tribunals where the Lord Chancellor is currently the appointing authority. Where Welsh Ministers are the appointing authority, the JAC manages the selection processes under the terms of an arrangement under section 83 of the Government of Wales Act 2006.

138. We propose that appointments should continue to be underpinned by clear and transparent selection processes. We are exploring with the JAC and with the UK government the practical issues of retaining the JAC to undertake selection processes and to make recommendations for appointments of members to the new tribunal system.

139. The upshot of accepting these proposals would be that the Lord Chancellor would not retain a role as an appointing authority in the new unified tribunal system. This appears to us to be appropriate: the Lord Chancellor is responsible for the judiciary of the reserved, England and Wales jurisdiction and does not generally have commensurate functions with regard to the judiciary in devolved institutions, such as the courts of Scotland.

140. A further product of the piecemeal development of the devolved tribunals is that the criteria for appointment as tribunal members that prospective candidates must satisfy lack coherence and vary from tribunal to tribunal, rather than being consistent across the system. Currently, for example, for the Welsh Tribunals the judicial-appointment eligibility condition (Section 50 of the Tribunals Courts and Enforcement Act 2007) only applies by statute to legal roles in the Welsh Language Tribunal, the Education Tribunal for Wales and the Agricultural Land Tribunal for Wales.

141. The judicial-appointment eligibility condition imposes a statutory requirement for at least 5 or 7 years of post-qualification experience and specifies the relevant legal qualification that candidates must hold for appointment to a legal role. Those qualifications include, for example, barrister, solicitor, or Fellow of the Chartered Institute of Legal Executives ("CILEx"). Currently, however, those holding the CILEx qualification are eligible to apply for a more limited range of legal roles in the wider England and Wales jurisdiction compared to those qualified as a barrister or as a solicitor. We note the flexibility available to the Senior President of Tribunals who may appoint a judge of the First-tier Tribunal even if that person does not satisfy the judicial-appointment eligibility condition (paragraph 2(d) of Schedule 2 to the Tribunals Courts and Enforcement Act 2007).

142. Non-legal roles cover a wider and varied range or areas. For the Welsh Tribunals this covers mental health, agriculture and local government ethical standards, amongst others. The eligibility criteria for non-legal roles therefore varies where this is appropriate, depending on the jurisdiction of the tribunal to which a non-legal role applies.

143. Whilst clear and consistent criteria for appointments is part of the equation for building and maintaining the body of members for the new tribunal system, another part is diversity. The Commission on Justice in Wales (“the Thomas Commission”) commented:

The people of Wales are entitled to a system for the provision of justice that meets their specific needs and takes into account demography, geography, diversity and equality. (Justice in Wales for the people of Wales, paragraph 12.3.2, page 450)

144. The annual official statistics on judicial diversity in England and Wales for 2022, covering the current judiciary, judicial appointments and legal professions, indicates, for example, that approximately half of tribunal judges were women, but the proportion is lower in the court judiciary, particularly in senior roles. In addition, for judicial appointments, recommendation rates from the eligible pool for ethnic minority candidates were an estimated 37% lower than for white candidates, a difference that is described in the official statistics as being statistically significant (Diversity of the judiciary: Legal professions, new appointments and current post-holders - 2022 Statistics).

145. We note the UK government has announced proposals to broaden the legal roles open to CILEx qualified legal professionals to include Judge of the Upper Tribunal of England and Wales, amongst others (UK Government press release, 11 May 2023). Broadening the pool from which appointments can be made will encourage greater diversity in the judiciary over time. The Thomas Commission saw CILEx as increasing diversity in the legal profession in Wales, with some 75 per cent of its members female and 70 per cent of its members aged below 44 years of age (Justice in Wales for the people of Wales, paragraph 9.20, page 379). It offers a more accessible route to qualification for many in Wales:

The Chartered Institute of Legal Executives’ route to qualification as a legal professional is more accessible, flexible and affordable… It provides a non-university route to achieving the academic stage of legal training. Students can study, often on a part time basis, through local colleges or by distance learning and at a pace of their choosing; they can be in relevant employment whilst doing so. The Institute estimates that it costs a person on average less than £10,000 to qualify as a Chartered Legal Executive, which is much less than the costs to qualify as a solicitor or a barrister. (Justice in Wales for the people of Wales, paragraph 9.45, page 388)

146. Currently, only in respect of appointments to one of the Welsh Tribunals is the appointing authority required to have regard to the need to encourage diversity in the range of persons appointed. That tribunal is the Welsh Language Tribunal where the Welsh Ministers are the appointing authority (Welsh Language Tribunal (Appointment) Regulations SI 2013 No.3139 (W.312), Regulation 4). We consider the President of Welsh Tribunals and the Welsh Ministers when making appointments to the First-tier Tribunal for Wales and the Appeal Tribunal for Wales should similarly be required to have regard to the need to encourage diversity in the range of persons appointed.

147. We also consider the pool of candidates eligible for appointment should be drawn widely to encourage persons with the appropriate experience, qualifications and skills, including, for example, legal professionals holding the CILEx qualification, to apply to join the membership of the new tribunal system. Gathering data on and monitoring key performance indicators will be a function of the Board of the new arms-length body. We see this as including indicators on the diversity of tribunal members and the Welsh language across the tribunal system.

148. The Welsh Ministers have the power to set the terms and conditions, including remuneration, of members of the Welsh Tribunals under the various separate legislative frameworks governing each of them. We propose the Welsh Ministers have an equivalent power in relation to all members of the new tribunals, enabling regard to be had to making terms and conditions common, where possible and appropriate, across the various jurisdictions as well as facilitating cross-deployment.

149. Cross-deployment, or cross-ticketing, is a means by which a member of a Welsh Tribunal can sit and hear cases in a Welsh Tribunal other than the one to which the member has been appointed (Section 62 of the Wales Act 2017). This is a flexible means of resourcing to meet the needs the current Welsh Tribunals. This system of flexible resourcing does not currently apply across all devolved tribunals in Wales.

150. Cross-deployment can also operate between the Welsh Tribunals and the UK First-tier Tribunal and Upper Tribunal and vice versa, where the President of Welsh Tribunals and the Senior President of Tribunals agree (Section 63 of the Wales Act 2017).

151. To facilitate the effective deployment of tribunal members across the new tribunal system in Wales and across the wider system of reserved tribunals, we propose a system of cross-deployment for judicial, legal and non-legal members should operate in the new tribunal system and the tribunal system in place in the England and Wales jurisdiction. It should be subject to appropriate approvals from the senior judicial leaders for each system of tribunals, in Wales this responsibility will sit with the President of Welsh Tribunals.

152. We propose the powers of cross-deployment are restricted to such deployment to tribunals at the same level, and so, for example, a judge ir other member of the First-tier Tribunal for Wales could be deployed to an equivalent position in a different jurisdiction to that of the Chamber to which they are appointed but cannot be cross-deployed into the Appeal Tribunal for Wales.

153. The President of Welsh Tribunals is a Lord Chief Justice appointment and both the Lord Chancellor and the Welsh Ministers are consultees in that. The Lord Chancellor also has functions in relation to removal of the President from office (Section 60 of and paragraphs 2 and 10 of Schedule 5 to the Wales Act 2017).

154. We have considered the underpinning rationale for the current arrangements and whether they remain optimal for the office of President in the new tribunal system. We propose in the paragraphs below in relation to appointments of tribunal members that the current appointing authority functions of the Lord Chancellor should not be retained in relation to the tribunals in the new unified tribunal system. We propose that, similarly, the current functions of the Lord Chancellor in relation to the appointment of the President should not be retained for the new tribunal system.

155. Our rationale for this proposal is the office of President of Welsh Tribunals is the most senior judge in the devolved tribunal system. The executive function in the process of the President’s appointment, namely affirming agreement to the Lord Chief Justice appointing a person to the office should be exercised by the Welsh Ministers alone, who collectively with the Counsel General and the Deputy Ministers are the Welsh Government, the executive for Wales.

156. We consider that there should be synergy and coherence between appointment and disciplinary processes, as we set in the paragraphs below. We therefore propose that the Lord Chancellor’s existing functions in relation to the dismissal of the President should not be retained for the new tribunal system.

157. As noted, the Lord Chief Justice of England and Wales is the appointing authority for the President of Welsh Tribunals. Within the hierarchy of judges, it is logical the President of Welsh Tribunals sits under the Lord Chief Justice, including within the system of devolved tribunals. It is also logical that the Lord Chief Justice has a role in the President’s appointment and in matters relating to discipline, particularly in relation to dismissal. But this does not mean the President must necessarily be appointed by the Lord Chief Justice. Appointing authority arrangements for the President’s appointment could therefore continue as they currently are in the new tribunal system, or there could be a Welsh appointing authority.

158. We welcome your comments on the process for appointing the President of Welsh Tribunals and whether and how it should evolve as part of the new tribunal system in Wales.

Footnotes

1. See, for example, section 4 and paragraph 1 of Schedule 2 to the Tribunals, Courts and Enforcement Act 2007, conferring the function on the Senior President of Tribunals to appoint ordinary members and legal members of the First-tier Tribunal for England and Wales. Back to text.

2. See, for example, sections 22 and 32 and paragraph 1 of Schedule 4 to the Tribunals (Scotland) Act 2014. The Scottish Minsters are the appointing authority for appointments to the First-tier Tribunal for Scotland and must: consult with the Lord President before appointing Chamber Presidents; and appoint Deputy Chamber Presidents if requested to do so by the President of Tribunals. Back to text.