A New Tribunal System for Wales: white paper - Chapter 9: Procedural rules

We propose:

• there should be common procedural rules across the new tribunal system as far as appropriate, but mindful of the need to accommodate differences between jurisdictions
• each chamber of the First-tier Tribunal for Wales and of the Appeal Tribunal for Wales should have its own set of procedural rules, and
• a Tribunal Procedure Committee for Wales be established, chaired by the President of Welsh Tribunals, to develop and keep up to date procedural rules which would be made by the President subject to them being approved by the Welsh Ministers.

170. We have in previous Chapters of this white paper discussed the piecemeal development of the devolved tribunals in Wales, which is particularly evident in the procedural rules of the devolved tribunals. Some procedural rules date back to pre-devolution legislation from the 1970s and were not written with Wales or modern tribunal practice in mind. This is not helped by the inconsistent use of terminology across the various pieces of legislation to refer to the power to make “rules”, “regulations”, “provision for procedure” and “procedure regulations”.

171. The existing procedural rules currently in place across the devolved tribunals in scope of the tribunal reform project are inconsistent, complex and out of date. This causes difficulties for both judges as well as tribunals users. We agree with the Law Commission that there is a need to address the coherence of procedural rules for the new tribunal system.

172. We therefore propose the creation of a Tribunals Procedure Committee for Wales with responsibility for reviewing and updating procedures to be known as “Tribunal Procedure Rules”, with common rules across the new tribunal system forming part of bespoke rules tailored to the jurisdiction of each of the chambers of the First-tier Tribunal for Wales and the Appeal Tribunal for Wales.

173. We propose the creation of a Tribunal Procedure Committee for Wales with responsibility for reviewing and updating procedures to be known as “Tribunal Procedure Rules”, to address the coherence of procedural rules for the new tribunal system instead of the existing inconsistent, complex and out of date rules currently in place across the devolved tribunals in scope of the tribunal reform project.

174. This model in part mirrors the approach taken in relation to the UK First-tier Tribunal and Upper Tribunal. The responsibility of making the rules governing the practice and procedure in those tribunals is vested in the Tribunal Procedure Committee, an advisory non-departmental public body, established by Section 22 of the Tribunals, Courts and Enforcement Act 2007 and sponsored by the Ministry of Justice. The Tribunal Procedural Committee makes the procedural rules with the aim of ensuring that tribunals are accessible and fair; cases are quick and efficient; and rules are simple and clear. The Tribunal Procedural Committee keeps the procedural rules under constant review particularly in light of new rights of appeal and legislative change.

175. We consider it is important to have an oversight body to ensure the consistency of the rules where necessary; to recognise the need to protect the unique characteristics and needs of individual tribunals where appropriate; and to ensure the procedural rules are regularly reviewed and kept up to date.

176. We propose the Tribunal Procedure Committee for Wales will be a statutory committee, to be chaired by the President of Welsh Tribunals, who will also be responsible for appointing the committee’s members, being guided in this process by factors set out in legislation. We propose the Tribunals Procedure Committee for Wales membership should reflect the various jurisdictions/chambers of the First-tier Tribunal for Wales but should also consist of representatives of tribunal users.

177. Our proposed structure for the Tribunal Procedure Committee for Wales, including matters such as, its membership, how members are appointed, and the tenure of members, amongst other matters, are set out in Table 4.

178. The Tribunals, Courts and Enforcement Act 2007 (Part 3 to Schedule 5 of the Tribunals, Courts and Enforcement Act 2007), sets out the procedure for making the Tribunal Procedural Rules of the First-tier Tribunal and the Upper Tribunal. Broadly, these procedural rules are made by the [UK] Tribunals Procedure Committee, following a majority agreement of its members (Paragraph 28(2)(a) of Part 3 to Schedule 5 of the Tribunals, Courts and Enforcement Act 2007) and, amongst other things, after consultation with such persons as they think appropriate (including Chamber Presidents) (Paragraph 28(1)(a) of Part 3 to Schedule 5 of the Tribunals, Courts and Enforcement Act 2007). The Draft rules are submitted to the Lord Chancellor, who may allow or disallow them (Paragraphs 28(2)(b) and 28(3) of Part 3 to Schedule 5 of the Tribunals, Courts and Enforcement Act 2007). If allowed, the rules are made by the Committee by statutory instrument (Paragraphs 28(5) and 28(6) of Part 3 to Schedule 5 of the Tribunals, Courts and Enforcement Act 2007). The Tribunal Procedural Rules are made by Committee in line with statutory objectives, and further guiding principles based on the underlying statutory objectives.

179. The Scottish Civil Justice Council, a body established in May 2013, is responsible for the preparation of draft rules of procedure for civil courts in Scotland, which are presented to the Court of Session who then create the rule by Act of Sederunt. The Tribunals (Scotland) Act 2014 amended the functions of the Scottish Civil Justice Council to include a duty to “review the practice and procedure followed in proceedings in the Scottish Tribunals” (The Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 s2 (1) (ba) (as amended by paragraph 13 to Schedule 9, to the Tribunals (Scotland) Act 2014). The amendment is not yet in force; in the meantime tribunal rules are made by the Scottish Ministers.

180. The Law Commission sought views as to how the procedural rules of the devolved tribunals should be made (Law Commission (2020) Devolved Tribunals in Wales Consultation Paper, consultation question 34, Paragraphs 5.109 (page 106) and 11.33 (page 215)). Whilst, most respondents considered the rules should be made by a majority of the Tribunal Procedure Committee for Wales, nearly a third of respondents supported a combination of the rules being made by a majority of the Tribunal Procedure Committee for Wales or by the President of Welsh Tribunals with the approval of the Welsh Ministers. This included Sir Wyn Williams, who at the time of responding held the office of the President of Welsh Tribunals.

181. The Law Commission concluded the best approach was as suggested by Sir Wyn Williams: that the rules be made by the President of Welsh Tribunals, only after having been formulated and accepted by a majority of the committee. The Law Commission considered this approach should meet the wish of tribunal members for checks and balances to be in place, should prevent a majority of the committee from imposing their views and would also help to empower and ensure the credibility of the committee. Finally, given the terms of procedural rules can have cost implications, the Law Commission considered the rules should, in addition, be subject to the approval of the Welsh Ministers. The Law Commission formularised its conclusion in Recommendation 25 (See Annex 2, Law Commission recommendation 25) of its final report. The Law Commission further recommended a duty on the Committee to consult with whomever it considers appropriate before the rules are made (See Annex 2, Law Commission recommendation 26).

182. We have considered the responses to the Law Commission’s consultation and the conclusions drawn. We agree with the recommendations of the Law Commission and propose the Tribunal Procedure Rules of the devolved tribunals are to be made by the President of Welsh Tribunals, in a form agreed by a majority of the Tribunal Procedure Committee for Wales, and subject to being approved by the Welsh Ministers.

183. We propose provision is included on the face of the bill setting out the process for making Tribunal Procedure Rules. The Tribunal Procedure Rules will be made by the President of the Welsh Tribunals with the concurrence of the Welsh Ministers through statutory instrument.

184. We consider there is merit in ensuring wide consultation with judicial leads, tribunal members, policy-makers and tribunal users before the rules are made, to ensure robust procedural rules, which work for all potential tribunal users and the judiciary. Therefore, we also propose the Tribunal Procedure Committee for Wales should be subject to a duty to consult with whomever it considers appropriate (including members of the tribunal, members of the broader judiciary, practitioners and tribunal users, as suggested by the Law Commission) before making the rules.

185. Further detail regarding the making of the Tribunal Procedure Rules is set out in Table 4 below.

186. We consider the standardisation of some aspects of the Tribunal Procedural Rules of the devolved tribunals will ensure the procedural rules for the tribunal system in Wales are consistent and accessible for tribunal users and for administrative staff and cross-ticketed tribunal members sitting across chambers in the new structure. Thereby, promoting flexibility and efficiency in the unified devolved tribunal system.

187. The First-tier Tribunal and the First-tier Tribunal for Scotland both have separate sets of procedural rules for each chamber. There are 7 sets of procedural rules in the First-tier Tribunal, containing an identical overriding objective and duty of the parties to cooperate with the tribunal. One of the guiding principles followed by the UK Tribunal Procedure Committee is that the Committee should strive to: adopt common rules across tribunals wherever possible, so that rules specific to a chamber or a tribunal operate only where there is a clear and demonstrated need for them.

188. We propose the Tribunal Procedure Committee for Wales develop common Tribunal Procedure Rules across the new tribunal system. But importantly this standardisation should only be as far as this is appropriate. Therefore, in addition we propose, chambers into which jurisdictions are organised should have bespoke rules recognising the unique characteristics and needs of their respective jurisdictions. Similarly, when the Appeal Tribunal for Wales is divided into chambers the same approach should apply to its Tribunal Procedure Rules.

189. Whilst it will be for the Tribunal Procedure Committee for Wales to develop the Tribunal Procedure Rules, we agree with the Law Commission recommendation (see Annex 2, Law Commission recommendation 30) and therefore propose the procedural rules of the First-tier Tribunal for Wales and the Appeal Tribunal for Wales should include the following matters:

1. an overriding objective
2. a duty of the parties to cooperate with each other and the tribunal
3. provision for service of documents by electronic means
4. a power for the First-tier Tribunal for Wales to review its own decisions, and 
5. rules on remote hearings.

190. Further details on our proposals on the matters proposed, as noted in paragraph 188 above, which could be included in the standardised procedural rules, are set out in paragraphs 191 to 208 below.

191. We also propose the Tribunals Procedure Committee for Wales has the power to develop Tribunal Procedure Rules nuanced for each chamber and its specific jurisdiction, as detailed in Table 4 below.

An overriding objective and a non-exhaustive list of illustrative examples

192. The procedural rules of the Mental Health Review Tribunal for Wales, Education Wales Tribunal, residential property tribunals which form part of the Residential Property Tribunal for Wales and the Welsh Language Tribunal contain an overriding objective. Although each overriding objective differs in its wording, they have in common the requirement that cases should be dealt with “fairly and justly” (an example of variation can be found in Mental Health Review Tribunal for Wales Rules SI 2008 No 2705, Rule 3, which states the overriding objective of the rules is to enable the tribunal to deal with cases “fairly, justly, efficiently and expeditiously”).

193. The Law Commission recommended that the new standardised procedural rules of the devolved tribunals should contain an overriding objective to be applied consistently across tribunals. Procedural rules generally provide a non-exhaustive definition of what it means to deal with cases “fairly and justly”. The Law Commission consultation paper included an example of what the overriding objective (Law Commission, 2020. Devolved Tribunals in Wales Consultation Paper, consultation question 21, paragraphs 5.19, page 87 and 11.21, page 212) could contain, drawing on examples taken from the statements of overriding objective contained in the existing procedural rules (Devolved Tribunals in Wales Consultation Paper, paragraph 5.13, page 86). The Law Commission recommended that a new overriding objective should include a non-exhaustive list of illustrative examples.

194. We propose the new standardised procedural rules should include a statement of principle to guide exercises of discretion by containing an overriding objective which the devolved tribunals must give effect to when exercising any function under the tribunal procedure rules or interpreting any procedural rule.

195. We propose the Tribunal Procedure Rules of the First-tier Tribunal for Wales and Appeal Tribunal for Wales could contain an overriding objective, for example, to enable the Tribunal to deal with cases fairly and, justly. There is authority that, even where there is no express overriding objective in a particular set of tribunal rules, a tribunal must deal with matters fairly and justly. Whilst this objective may be implied, we propose to make it express. We consider the inclusion of an overriding objective would promote justice, assist in judicial decision making and assist tribunal users. We propose the overriding objective should also include an inexhaustive list of illustrative examples of what it means to deal with cases in line with the objective.

A duty of the parties to cooperate with each other and the tribunal

196. The Law Commission’s final report recommended an overriding objective should be accompanied by a duty of the parties to cooperate with each other and the tribunal. Such a duty being currently contained in the overriding objective of the procedural rules of some of the devolved tribunals. In the case of the Mental Health Review Tribunal for Wales, whilst not contained within its own procedural rules, such a rule is contained within that of its First -tier tribunal for England and Wales equivalent.

197. We propose there should be a duty of tribunal users to cooperate with the tribunal and other parties. However, we recognise the duty ought to encourage cooperation rather than being too prescriptive. The duty would emphasise the inquisitorial rather than adversarial nature of a tribunal.

Provision for service of documents by electronic means

198. The procedural rules on service of documents across the devolved tribunals are inconsistent and out of date, reflecting their piecemeal development. The rules do not address modern tribunal practice and are not reflective of technological advances. For example, express provision permitting documents to be sent by email is only contained in the procedural rules of 3 of the devolved tribunals (^{footnote 1}), with the rules of others only implicitly appearing to permit documents to be sent by email. Practice directions have been utilised to expressly permit parties to serve documents by email (^{footnote 2}) during the COVID-19 pandemic. The problem has been highlighted by recent caselaw (^{footnote 3}).

199. The Law Commission, in its consultation, proposed the procedural rules of the devolved tribunals should provide for service of documents by electronic means.

200. We note the concerns raised by some respondents, whilst agreeing with the principle of the provisional proposal. For example, particularly in the context of the Mental Health Review Tribunal for Wales, it was considered that provision should be enabling rather than prescriptive, to allow hard copy communications where appropriate (^{footnote 4}). It was also considered that permitting the electronic service of documents could impede the participation of digitally excluded people.

201. We particularly share the concerns regarding digital inclusion in relation service of documents. Through the Digital Strategy for Wales we make clear that for people who cannot, or decide not to, participate digitally, we must continue to apply the principles of user-centred design so that there are alternative ways to access public services in Wales and that these access routes should be as good as those offered online. The National Survey for Wales 2021-22 confirmed there is an estimated 180,000 people aged 16 and over, living in Wales who do not personally use the internet and therefore cannot access digital services, including tribunal related services. These citizens cannot be left behind.

202. It is of note that the procedural rules of all the chambers of the UK First-tier Tribunal make express provision for the electronic service of documents. However, none of them prescribe electronic service of documents as the only method of service. We propose the Tribunal Procedure Rules should make provision for service of documents by electronic means, but not exclusively. This would ensure the devolved tribunals procedural rules are consistent and brought up to date with modern tribunal practice and technological advances, whilst also acknowledging the importance of affording proper protection to the potentially vulnerable and to the digitally excluded, and in turn safeguarding access to justice.

A power for the First-tier Tribunal for Wales to review its own decisions

203. The power to review decisions can be a useful tool to tribunals, as it provides them with an opportunity to correct obvious errors without the need for an appeal. However, the power of devolved tribunals to review their decisions varies across the tribunals, where such a provision exists at all.

204. We agree with the Law Commission recommendation that the Tribunal Procedural Rules contain a power for the First-tier Tribunal for Wales to review its own decisions. The power to review decisions would allow the First-tier Tribunal Wales to rectify any obvious errors of law or procedure, it would not seek to alter the grounds of appeal. In this way the Tribunal Procedural Rules would consistently provide a sensible, proportionate and cost-effective means of scrutinising the decision-making process in circumstances limited to correcting obvious errors of law or procedure and avoiding unnecessary appeals.

Rules on remote hearings

205. The COVID-19 pandemic saw tribunal hearings migrate from face-to-face to remote hearings, whether by telephone conference or video conference. Whilst this approach to tribunal hearings was in response to the pandemic, in some cases the impact has been beneficial for tribunal users. The President of Welsh Tribunals reported, in his 2020/2021 annual report (President of Welsh Tribunals Third Annual Report 2020-2021), the great success of remote hearings in relation to the then Special Educational Needs Tribunal for Wales and its tribunal users positive preference for remote hearings, since tribunal users “are, in the main, able to participate from their own homes and, in consequence, feel more relaxed and better able to participate” in the proceedings (President of Welsh Tribunals Third Annual Report 2020-2021 page 12).

206. Where appropriate, remote hearings continue to be utilised today, despite the COVID-19 pandemic restrictions having now been lifted. However, currently, there is no uniform procedure for remote hearings across the devolved tribunals. The Law Commission “saw no principled reason for such inconsistency” (Devolved Tribunals in Wales, paragraph 6.155, page 126) and considered the significant increase in the use of remote hearings since the beginning of the COVID-19 pandemic, “created a strong case for updating and standardising procedural rules relating to remote hearings across the devolved tribunals” (Devolved Tribunals in Wales, paragraph 6.155, page 126). The Law Commission, therefore, recommended that rules on remote hearings should be standardised in the devolved tribunal procedural rules. However, there would need to be “sufficient flexibility” to accommodate the requirements of each individual tribunal in the use of remote hearings (Devolved Tribunals in Wales, paragraph 6.165, page 128; and see Annex 2, Law Commission recommendation 30).

207. We agree with the Law Commission recommendation. Remote hearings will continue to be a feature of the modern tribunal system and there is a need to standardise the rules relating to them. We, therefore, propose that the procedural rules of the First-tier Tribunal for Wales and the Appeal Tribunal for Wales should include rules on remote hearings.

208. We recognise the potential benefits of standardising the rules relating to remote hearings. For example, improving the accessibility of the tribunals; and ensuring tribunals users in Wales are not disadvantaged by the potential creation of a two-tier system, if we do not keep pace with the shift towards digitalisation within His Majesty’s Courts and Tribunals Service. However, we also acknowledge the concerns raised by some respondents to the Law Commission consultation. For example, the importance of working with deaf individuals to ensure their communication needs are met appropriately for both face-to-face and remote hearings (See comments of The National Deaf Children’s Society Cymru: Devolved Tribunals in Wales, paragraph 6.162, page 127); and of giving careful consideration to the “unique circumstances of the Mental Health Review Tribunal for Wales and the fact that it is very difficult to ascertain the physical and mental state of a person remotely” (Devolved Tribunals in Wales, paragraph 6.163, pages 127-128).

209. Consequently, whilst it will be for the Tribunal Procedure Committee for Wales to consider and formulate the draft Tribunal Procedure Rules, we believe the Tribunal Procedure Committee for Wales should consider the need for sufficient flexibility in its approach to and application of the rule, allowing practice directions which build on the standard rule on remote hearings so as to reflect the unique subject matters of all the devolved tribunals.

210. To ensure as little disruption as possible to the devolved tribunals in Wales, we propose provision is included on the face of the bill detailing the transitional arrangements. We propose that such a provision would set out that, on creation of the new tribunal system and the transfer into it of those tribunals to be incorporated in the new structure from day one (for example, the Section 59 Welsh Tribunals), the procedural rules that are in force immediately before transfer will have effect as if they are the Tribunal Procedure Rules of that particular chamber of the First-tier Tribunal for Wales until such time as new chamber Tribunal Procedure Rules are made and implemented.

The proposed new Tribunal Procedure Committee for Wales and Tribunal Procedure Rules

Areas:

• Establishment
• Purpose
• Membership
• Sub-groups
• Proceedings
• Delegation
• Secretariat
• Making of the Tribunal Procedure Rules
• Duties on the Tribunal Procedure Committee
• Tribunal Procedural Rules

View in table format

Establishment

Statutory provision: Tribunal Procedure Committee for Wales

A statutory committee, the “Tribunal Procedure Committee for Wales” to be established.

Statutory provision: Status

As a general principle the Law Commission concluded the administration for the tribunal system should be staffed by civil servants, which is usually the status of staff employed by an NMD. We are consulting on options.

Welsh Ministers’ accountability

The portfolio Welsh Minister will account to the Senedd, along with the Permanent Secretary and the CEO and Chair of the Board.

Purpose

Statutory provision: Objective - (to make Tribunal Procedure Rules)

To develop rules, to be called “Tribunal Procedure Rules”, governing:

1. the practice and procedure to be followed in the First-tier Tribunal for Wales, and
2. the practice and procedure to be followed in the Appeals Tribunal for Wales.

The Tribunal Procedure Committee for Wales is to be responsible for ensuring the Tribunal Procedure Rules are developed, reviewed on a regular basis and remain up-to-date.

The Tribunal Procedure Rules would seek to deliver fairness, greater access to justice for users, efficiency, clarity of language, consistency, simplicity for administrative staff and cross-ticketed judges.

Statutory provision: Functions

Statute to detail functions of the Tribunal Procedure Committee for Wales.

Membership

Statutory provision: Chairperson

President of the Welsh Tribunals

Welsh Ministers’ accountability

Section 60(1) of and Schedule 5 to the Wales Act 2017, provide that the Lord Chief Justice may appoint a person to the office of President of Welsh Tribunals after consultation with the Welsh Ministers and Lord Chancellor, if no agreement is met then the recruitment may be referred to the Judicial Appointments Commission.

The Welsh Ministers will have no further role in the appointment of the Chairperson of the Tribunal Procedure Committee for Wales.

Statutory provision: Members appointment

The President of Welsh Tribunals to be responsible for appointing members to the Tribunal Procedure Committee for Wales.

We do not intend to prescribe the membership of the Tribunal Procedure Committee for Wales by statute. However, we propose the President of Welsh Tribunals, when appointing members of the Tribunal Procedure Committee for Wales will be under a duty "to have due regard" to factors/general guiding principles to be set out in legislation, including the need for:

1. the interests of each Chamber of the First-tier Tribunal for Wales and, in due course, the Appeal Tribunal for Wales to be represented
2. the committee to have access to persons with relevant expertise, and
3. the committee to include persons who have experience of appearing in front of the tribunal or advising those that do.

Statutory provision: Members

Appointed by the President of Welsh Tribunals, we envisage the Tribunal Procedure Committee for Wales to consist of core members and additional members appointed as and when required to provide jurisdiction-specific knowledge. Members are to be drawn from judicial and non-judicial/practitioner fields.

Judicial members: Chambers Presidents as ex officio members (based on our proposed structure for the First-tier Tribunal for Wales (see Figure 1); or the President of Welsh Tribunals to select from some judicial members from the pool of Chamber Presidents; or rotate membership between Chamber Presidents.

Non-judicial/Practitioner members: Members with special knowledge of administrative and tribunal decision-making. Not fewer than 3 nor more than 6 persons to ensure a balance of views based on the proposed structure for First-tier Tribunal for Wales.

[This potentially provides a Tribunal Procedure Committee for Wales of between 9 and 12 members excluding the President of Welsh Tribunals.]

The composition of the Tribunal Procedure Committee for Wales may need to vary depending on the jurisdiction for which it is making Tribunal Procedure Rules and as jurisdictions transfer into the new unified tribunal structure.

Statutory provision: Tenure/Term of appointment (except PWT)

Tenure to be considered for members of the Tribunal Procedure Committee for Wales.

The pool of members is likely to be small, and specialism may be lost if the normal limits on the tenure for public appointments is rigidly imposed. Therefore, we consider that a more flexible approach to length of service on the Tribunal Procedure Committee for Wales should be adopted.

Statutory provision: Time commitment

We propose consideration should be given to the number of committee meetings to be held each year being prescribed in statute to correspond with the duty to meet described below. Possibly 9 per year, in line with the UK Tribunal Procedure Committee.

Statutory provision: Remuneration

Unremunerated, but a power so that the Board of the new body may reimburse members of the Tribunal Procedure Committee for their standard/reasonable travel and out-of-pocket expenses.

This is in line with the power for the Lord Chancellor in relation to UK Tribunal Procedure Committee Members expenses under paragraph 26 of Part 2 to Schedule 5 to the Tribunals, Courts and Enforcement Act 2007.

Sub-groups

Statutory provision: Sub-groups

The Tribunal Procedure Committee for Wales to be able to establish sub-groups to focus on particular areas of work.

Power for the Tribunal Procedure Committee for Wales to establish sub-groups and co-opt persons to sit on them.

Proceedings

Statutory provision: Proceedings

Power for the Tribunal Procedure Committee for Wales to regulate its proceedings, quorum (including sub-groups), manner of voting, etc.

Delegation

Statutory provision: Delegation

Power for the Tribunal Procedure Committee for Wales to delegate any function to a member, subgroup, employee of the new body (see Table 1) or any other person, but not to divest itself of responsibility for the function delegated.

Secretariat

Statutory provision: Staff

The board of the new body (see Table 1) can appoint staff as it considers appropriate to enable the committee to discharge its functions.

Welsh Ministers’ accountability

Welsh Ministers to provide annual grant-in-aid of such amounts as ministers consider appropriate for the body to carry out its functions.

Making of the Tribunal Procedure Rules

Statutory provision: Process for making Tribunal Procedure Rules - by the President of Welsh Tribunals

Provision to set out the process for making the Tribunal Procedure Rules.

The Tribunal Procedure Rules of the devolved tribunals to be made by the President of Welsh Tribunals, in a form agreed by a majority of the Tribunal Procedure Committee for Wales, and subject to being approved by the Welsh Ministers.

NB: this could be a “qualified majority” (i.e., somewhat greater than 50%) or a simple majority of the Tribunal Procedure Committee for Wales.

Welsh Ministers’ accountability

The Tribunal Procedure Rules will be made by subordinate legislation/statutory instrument.

The Welsh Ministers will be accountable for approving the rules to be made by the PWT.

Duties on the Tribunal Procedure Committee for Wales

Statutory provision: Tribunal Procedure Committee for Wales “duty to consult”

The Tribunal Procedure Committee for Wales to be under a “duty of to consult” with whomever it considers appropriate (including Chamber Presidents (if not ex officio), members of the tribunal, members of the broader judiciary, practitioners and tribunal users) before the making of the rules.

Statutory provision: Tribunal Procedure Committee for Wales “duty to meet”

The Tribunal Procedure Committee for Wales to be under a “duty to meet” (unless it is inexpedient to do so).

(see paragraph 28(1)(c) of Part 3 to schedule 5 to the Tribunals, Courts and Enforcement Act 2007, in relation to the UK Tribunal Procedure Committee).

Statutory provision: Tribunal Procedure Committee for Wales “duty to have regard” to procedural rules of other courts and tribunals in the UK.

Tribunal Procedure Committee for Wales to be under a duty to have regard to procedural rules of other tribunals in the UK.

Tribunal Procedural Rules

Statutory provision: Each chamber to have its own set of Tribunal Procedure Rules

To include commonalities and to recognise individual characteristics of the jurisdiction of each chamber.

The Tribunal Procedure Committee for Wales to adopt common Tribunal Procedure Rules across tribunals but importantly as far as this is appropriate – chambers should have their own set of bespoke Tribunal Procedure Rules recognising the unique characteristics of the jurisdictions in each chamber and similarly when the Appeal Tribunal for Wales is divided into chambers.

Welsh Ministers’ accountability

See process for "Process for making Tribunal Procedure Rules - by the President of Welsh Tribunals" above.

Statutory provision: Contents of the Tribunal Procedural Rules - All rules

The Tribunal Procedure Rules of the First-tier Tribunal for Wales and the Appeal Tribunal for Wales to include:

1. an overriding objective relating to fairness and justice, with illustrative and non-exhaustive examples such as promoting independent decisions based on factual evidence
2. a duty of the parties to cooperate with each other and the tribunal
3. provision for service of documents by electronic means
4. a power for the First-tier Tribunal to review its own decisions; and rules on remote hearings.

The Tribunal Procedure Committee to have a statutory duty to draft the rules, guided by clear principles when doing so, e.g., securing that justice is done in proceedings, that the tribunal system is accessible and fair and such like – an example is at section 22(4) of the Tribunals, Courts and Enforcement Act 2007.

Statutory provision: Contents of the Tribunal Procedure Rules - Non-exhaustive list of discretionary provisions

In addition to the rules to apply across all jurisdictions (as noted above), the Tribunal Procedure Committee will have the power to make rules which are needed in each jurisdiction able to make different rules for different circumstance. We propose it may make provision in respect of the following although this is not intended to be an exhaustive list and the Committee will exercise its judgement as to the tailored rules for each jurisdiction:

1. Delegation to staff
2. Time limits
3. The extent to which matters may be decided without a hearing and whether a hearing may e public or private
4. Proceedings without prior notice
5. Representation
6. Evidence and witnesses, including provisions relating to the payment of expenses for those attending hearings
7. Use of information
8. Costs and expenses
9. Alternative dispute resolution
10. Correction of decisions and setting aside of decisions on procedural grounds

See as an example Part 1 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007.

Statutory provision: Transitional arrangements

Statue to include transitional arrangements to the effect that on creation of the new tribunal system and the transfer into it of the “listed tribunals” (those tribunals to be incorporated in the new structure from day one) the procedural rules that are in force immediately before transfer have effect as if they are the Tribunal Procedure Rules of that particular chamber of the First-tier Tribunal for Wales.

Table 4: The proposed new Tribunal Procedure Committee for Wales and Tribunal Procedure Rules

Footnotes

1. Only the Education Tribunal for Wales, Valuation Tribunal for Wales and residential property tribunal rules specifically state that documents can be sent by email. See The Special Educational Needs Tribunal for Wales Regulations SI 2012 No. 322 (W. 53), regulation 79(2)(c); The Education Tribunal for Wales Regulations SI 2021 No. 406 (W. 132), regulation 75(4); The Valuation Tribunal for Wales Regulations SI 2010 No 713 (W 69), regulation 46(5); and The Residential Property Tribunal (Wales) Regulations SI 2006 No. 1641 (W.156), regulation 37. Back to text.

2. See The Mental Health Review Tribunal for Wales Rules SI 2008 No. 2705 (L. 17), rule 9(1); The Adjudications by Case Tribunals and Interim Case Tribunals (Wales) Regulations SI 2001 No 2288 (W 176), regulation 24(b); The Agricultural Land Tribunals (Rules) Order SI 2007 No 3105, rule 49(b); and The Leasehold Valuation Tribunals (Procedure) (Wales) Regulations SI 2004 No 681 (W 69), regulation 23(c)(ii). Back to text.

3. See, for example, Agricultural Land Tribunal for Wales, Evans v Bodorgan Properties (CI) Limited ALT 06/2017; and the Upper Tribunal (Lands Chamber) considered the Agricultural Land Tribunal for Wales’ rules on service in Adams v Jones [2021] UKUT 9 (LC); [2021] All ER (D) 65 (Jan). Back to text.

4. The First-tier Tribunal (Health, Education and Social Care) procedural rules are enabling and not prescriptive. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules SI 2008 No 2699, rule 13(4) provides that:

“… where the Tribunal or a party sends a document to a party or the Tribunal by email or any other electronic means of communication, the recipient may request that the sender provide a hard copy of the document to the recipient.”

Back to text.