A New Tribunal System for Wales: white paper - Chapter 3: A new structure for Wales’ tribunal system

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.

27. We have set out in this white paper the historical background of the body of devolved tribunals in Wales. The piecemeal nature of their development, with each tribunal governed by its own legislative framework, means our tribunal system as a whole is characterised by a lack of consistency and coherence in both administration and practices and procedures. As we explore in this white paper, most tribunals are administered by central government, while others, such as school admission and exclusion appeal panels, remain closely tied to local government, and membership structures vary.

28. Whilst our tribunal system does generally provide effective access to justice for tribunal users, the current structure can be difficult for users to navigate and can be better framed for the judiciary to manage cases and resources.

29. The Law Commission saw a number of advantages to unifying the devolved tribunals in a single statutory structure:

1. greater coherence through amalgamation, allowing tribunals to pick the best of existing arrangements while reducing complexity for tribunal users and members
2. increased profile for the body of devolved tribunals as a means of facilitating access to justice for the people of Wales, and
3. the ability to accommodate future developments within devolved tribunals over time, particularly new or additional jurisdictions.

30. We consider a unified tribunal system for Wales will lay the foundation for a future where justice is increasingly devolved, and Wales administers its own wider system of courts and tribunals.

31. Extensive reform of the reserved tribunals and their administration was undertaken following the review by Sir Andrew Leggatt (“the Leggatt Report” - see Chapter 1: Introduction, paragraph 10), who concluded

"If it is to be capable of handling its workload effectively, and ensuring the consistent development of the law, the Tribunal system must have a coherent structure to enable the effective management of workload, encourage consistency, and further a common approach in decision-making and case handling and management. (Report of the Review of Tribunals, paragraph 6.2)

32. As a result of the Leggatt Report, combined with the reform to the reserved tribunals under the Tribunals, Courts and Enforcement Act 2007 which provided the legislative framework for many of the recommendations of the Leggatt Report, many reserved tribunals were separated from their sponsoring government departments and given a separate judicial structure. A separate administration was also created initially under the responsibility of the Ministry of Justice. A large number of tribunals were replaced with just 2: a unified First-tier Tribunal hearing cases of different jurisdictions; and the Upper Tribunal hearing appeals from the new lower tribunal. Both First-tier Tribunal and Upper Tribunal are organised into chambers to manage particular functions or jurisdictions of their respective tribunal. The post of Senior President of Tribunals was created to head the tribunals judiciary.

33. The devolved tribunals in Wales did not fall within the scope of the Leggatt Review and were not within the scope of the 2007 Act.

34. Similarly, the Leggatt Report did not consider devolved tribunals in Scotland. It was not until 2014, following the Tribunals (Scotland) Act 2014 (“the 2014 Act”) being passed, that a new tribunal structure which aimed to bring together individual tribunals (listed in Schedule 1 to the 2014 Act) into a first-tier tribunal, the “First-tier Tribunal for Scotland”, was provided for. The 2014 Act also provides for subdivision of the work of the First-tier Tribunal for Scotland into chambers.

35. The Commission on Justice in Wales, chaired by former Lord Chief Justice of England and Wales, Lord Thomas of Cwmgiedd, (“the Thomas Commission”) recommended that the courts and tribunals which determine disputes in both civil and administrative law should be under one unified system in Wales (Justice in Wales for the people of Wales, recommendation 22 paragraph 5.56, page 260). The Thomas Commission was also of the view that the Welsh Tribunals Unit should have structural independence and the Welsh tribunals should be used for dispute resolution relating to future Welsh legislation (Justice in Wales for the people of Wales, recommendation 27 and paragraphs 6.59, 6.59.1 and 6.49.2, page 284).

36. Building on all of these experiences, as well as its own consultation, the Law Commission has recommended the creation of a structurally independent tribunal service for Wales, comprising 2 new generic tribunals - a single unified First- tier Tribunal for Wales and an Appeal Tribunal for Wales (See Annex 2, Law Commission recommendations 1 and 11). Our proposals for structural independence are discussed further in Chapter 5 of this white paper.

37. We propose a unified tribunal system for Wales comprising 2 new generic tribunals:

1. the First-tier Tribunal for Wales, the tribunal of first instance organised into chambers based on jurisdiction to assume the jurisdictions of the tribunals that will transfer into the new unified structure and to accommodate and preserve judicial expertise, and
2. the Appeal Tribunal for Wales, the appeal tribunal to hear appeals from the First-tier Tribunal for Wales, also organised into chambers as appropriate as appeal jurisdictions are transferred to it and the volume of appeal work develops.

38. We propose the structure of the unified tribunal system is flexible by design and able to accommodate:

1. the jurisdictions transferred in on establishment
2. the creation of new chambers to take on additional existing jurisdictions or routes of appeal that are transferred in, or are new routes of appeal created by future legislative change
3. the addition of jurisdictions to existing chambers, and
4. the transfer of jurisdictions between chambers,

and to do so with relatively little disruption.

39. We propose the initial chamber structure is created on the face of the Bill to absorb the jurisdiction of specified tribunals transferred into the First-tier Tribunal for Wales, as set in Chapter 4. Thereafter, we propose there should be flexibility relating to the chamber structure to further organise the work of the First-tier Tribunal for Wales and the Appeal Tribunal for Wales, without further primary legislation being required. This would include a power to create new chambers and to allocate work to and transfer jurisdictions into and between those chambers, including the transfer of appellate jurisdiction to the Appeal Tribunal.

40. We propose the power in relation to the chamber structure should be exercised by subordinate legislation made by the Welsh Ministers with the concurrence of the President of Welsh Tribunals. The power is to build flexibility into the new tribunal system and how its work is organised.

41. It is intended the power will be exercised, for example, on establishment of the First-tier Tribunal for Wales, to organise the jurisdictions of existing Welsh Tribunals into an organisational structure. To preserve specialist expertise and improve the service to tribunal users, jurisdictions will be grouped so that similar work is dealt with by judges and members with the relevant skills to deal with it. The chambers system is intended to be flexible so that changes can be made easily to those boundaries as the workload of the tribunals changes.

42. We propose the power is subject to a duty to consult with, for example, Chamber Presidents, Deputy Presidents, other members of the First-tier Tribunal for Wales/Appeal Tribunal for Wales, members of the broader judiciary, practitioners and tribunal users, before making the statutory instrument. We welcome views as to whether (and if so which) consultees should be compulsory and therefore named on face of the Bill, or whether it is sufficient to require that ministers consult with whomever it appears to them is appropriate.

43. We consider our proposals will bring coherence, simplicity and efficiency to the existing system, increase the public profile of the tribunals, enhance the tribunal user’s experience and importantly improve access to justice. We particularly wish to ensure that the structure adopted is fit for purpose today and has the flexibility to be fit for the future, with the ability to accommodate future developments within the devolved tribunals in Wales.

44. The devolved tribunal jurisdictions to be transferred into the new system on establishment and the proposed scheduling of such of this is set out in Chapter 4 (“Scheduling Reform”).

45. There is lack of consistency in terms of membership across existing devolved tribunals.

46. In practice, all of the Welsh Tribunals (Section 59(1) of the Wales Act 2017 lists the tribunals known collectively as “the Welsh Tribunals”) have a membership that comprises an office holder with a judicial leadership role, and a wider membership that can be divided into legal and non-legal members. However, the legislative framework and the description of the categories of tribunal member varies for each tribunal. It also varies across those other tribunals not falling within the ambit of section 59 of the Wales Act 2017 but falling within scope of the tribunal reform project.

47. For example, most of the Welsh Tribunals have presidents who are judicial members (barristers or solicitors with experience of specified periods). However, the Residential Property Tribunal for Wales has both a president and a vice-president. Members of the Education Tribunal Wales are eligible to deal with any cases which arise in the jurisdiction of the Registered Schools Inspectors Appeal Tribunal and the Registered Nursery Education Inspectors Appeal Tribunal. Members of the Valuation Tribunal for Wales are volunteers, whereas members of the section 59 tribunals are generally fee paid, with a small number of salaried members. No member of the School Admission Appeal Panels and School Exclusion Appeal Panels is required to be a barrister or a solicitor.

48. We propose that there should be coherence in terms of tribunal membership in the unified structure for the new tribunal system. Whilst judicial leadership in each chamber will undoubtedly maintain a separate identity for that chamber and the day-to-day operation of its discrete jurisdiction, we consider that this should be framed by the structural coherence of the unified system consistent with good practice across the system as a whole.

49. We, therefore, propose that both the First-tier Tribunal for Wales and the Appeal Tribunal for Wales should be under the judicial leadership of the President of Welsh Tribunals as presiding judge and that the President of Welsh Tribunals is able to sit as a judge in both tribunals. We also propose there should be a consistent structure of membership for each chamber:

1. We proposed the structure for the membership of each chamber of the First-tier Tribunal for Wales be as follows:
   1. Chamber President
   2. Deputy Chamber Presidents (where necessary, dependent upon factors such as the volume of applications)
   3. Legal members, and
   4. Non-legal members, with requisite qualification, skill and experience based on the requirements of the particular jurisdiction.
2. We propose the structure for the membership of the Appeal Tribunal for Wales be as follows:
   1. Chamber Presidents of the First-tier Tribunal for Wales, ex officio
   2. existing members of the Upper Tribunal for England and Wales cross deployed as members of the Appeal Tribunal for Wales as required, and
   3. members appointed, as set out in Chapter 7.

There should be scope to amend the membership, for example as the Tribunal is organised into chambers as appropriate as appeal jurisdictions are transferred to it and the volume of appeal work develops.

50. A sustainable tribunal membership reflective of Wales’ demography and diversity is a key component of the new tribunal system, and Chapter 7 of this white paper outlines our proposals for appointments to each of the above offices.