A New Tribunal System for Wales: white paper - Chapter 6: The President of Welsh Tribunals

We propose:

• the President of Welsh Tribunals should be the presiding judge of the First-tier Tribunal for Wales and the Appeal Tribunal for Wales, able to sit as a judge in those tribunals, and
• the role of President of Welsh Tribunals should be enhanced by conferring new statutory duties and functions on the office.

117. The Wales Act 2017 created the office of President of Welsh Tribunals. The President’s functions under the Act are twofold (Section 60(5) of the Wales Act 2017). First, the President is responsible for the maintenance of the tribunals (Section 59 of the Wales Act. See also Chapter 2: Scope of our reforms) within the resources made available by the Welsh Ministers. This extends to training, guidance and welfare of the members of those tribunals. Second, the president is responsible for representing the views of members of the tribunals to the Welsh Ministers and to the Senedd. The first President of Welsh Tribunals, Sir Wyn Williams did this in part through his annual reports that were presented to the First Minister and Counsel General, then laid before the Senedd.

118. The Wales Act does not exhaustively define the duties, functions and powers of the President, some of which are implied. For example, it is commonly accepted that as the President is the most senior judicial figure within the devolved tribunals in Wales, with a complementary supervisory role over the tribunals in respect of which the President has statutory functions. Those functions are, however, currently limited to matters of training, guidance and welfare.

119. The role of the President of Welsh Tribunals is complicated by the nature of the current legislative frameworks for the tribunals under the President’s supervision. This is because the Wales Act 2017 has been overlaid across pre-existing legislation spanning the pre and post devolution periods. In addition, there are devolved tribunals within the scope of our proposals that do not fall within the purview of the President’s role.

120. We consider the office of President of Welsh Tribunals is a key component of Wales’ devolved tribunal system. The senior judicial leadership the office provides is required as our new tribunal system is created and as it evolves going forward. But we think there is potential to enhance the office of President of Welsh Tribunals, potential the UK government has grasped, too, in making the President of Welsh Tribunals the appointing authority for sitting-in-retirement offices for the Welsh Tribunals. Any such appointments, however, currently still require the agreement of the appointing authority for the original judicial office, which will either be the Welsh Ministers or the Lord Chancellor (Section 124 of the Public Service Pensions and Judicial Office Act 2022).

121. The Law Commission recommends the President of Welsh Tribunals should be presiding judge of the First-tier Tribunal for Wales and the Appeal Tribunal for Wales, able to sit as a judge in those tribunals (See Annex 2, Law Commission recommendations 17 and 18).

122. The Wales Act 2017 does not expressly confer a judicial role on the President of Welsh Tribunals to sit as a judge in the Welsh Tribunals. This position contrast with the equivalent senior leadership roles of the tribunals in England and Wales and in Scotland where, respectively, the Senior President of Tribunals and the President of Scottish Tribunals both have judicial roles prescribed in statute (Sections 4(1)(c) and 5(1)(a) of the Tribunals Courts and Enforcement Act 2007 and section 17(5) of the Tribunals (Scotland) Act 2014). Sir Wyn Williams as President of Welsh Tribunals commented on the judicial role of the President of Welsh Tribunals in his first annual report :

“Although the Act is silent upon the point, it seems clear that, as a senior judge, the President is entitled to sit as the legal chair of each of the Welsh Tribunals. That said, my view is that the President should sit as a legal chair of a Tribunal only if the Judicial Lead of that Tribunal and the President agree that the circumstances prevailing in a given case make it inappropriate for the Judicial Lead to sit. (President of Welsh Tribunals First Annual Report page 3)”

123. At present, whilst it may be implied the President of Welsh Tribunals can sit as a judge in one of the tribunals within the President’s remit, there is no accepted mechanism for this arrangement in practice and no provision in procedural rules or directions setting out the practice and procedure for how the President should sit.

124. We consider there are clear practical benefits for express statutory provision to be made for a judicial role for the President of Welsh Tribunals in both the First-tier Tribunal for Wales and the Appeal Tribunal for Wales. First, it will provide clarity to the current legal basis of the President’s judicial role. Second, together with suitable procedural rules it will provide certainty as to the practice and procedure to be followed on those occasions the President sits as a judge. Third, it will make senior judicial resource available to Wales’ emerging justice system particularly where issues arise relating to the application of devolved legislation across the tribunals as a whole. Fourth, it will provide a valuable insight to the President about the running of the tribunals and the allocation of resources across them. Finally, a specified judicial role for the President will increase the attraction of the office for potential incumbents in the future.

125. For clarity, we also propose an express statutory provision that the President of Welsh Tribunals is the presiding judge of both the First-tier Tribunal for Wales and the Appeal Tribunal for Wales.

126. We have discussed the statutory provisions underpinning the office of President of Welsh Tribunals, and the current limited nature and extent of the President’s functions. Whilst the office of President of Welsh Tribunals has since its inception under the Wales Act 2017 added very significant value to the tribunal justice system in Wales, we consider the office should be enhanced and have more substance.

127. In addition to an express statutory provision underpinning the judicial role of the President of Welsh Tribunals, we consider further statutory duties and functions should be conferred on the office to strengthen its leadership role across the new tribunals and in the interests of judicial independence. Many of these duties and functions are discussed in the other chapters of this white paper. They are set out in summary below:

Proposed duties and functions for the President of Welsh Tribunals

• Judicial oversight for the structure of the organisation of the First-tier Tribunal for Wales and the Appeal Tribunal for Wales - chapter 3
• Judicial oversight of proposals to add jurisdictions to the new tribunal system - chapter 3
• Judicial member or Chair of the Board of Tribunals Wales (“Tribiwnlysoedd Cymru/Tribunals Wales ” is the working name of the new statutory body we propose to create – see Chapter 5: Independence), the new body corporate arms-length from Welsh Government with operational responsibility for the administration of the new tribunal system - chapter 5
• Appointing authority for legal and non-legal members of the First-tier Tribunal for Wales - chapter 7
• Judicial oversight and concurrence to appointments by the Welsh Ministers of Chamber President and Deputy Presidents of the First-tier Tribunal for Wales and members of the Appeal Tribunal for Wales - chapter 7
• Authorising cross-deployment of tribunal members across the First-tier Tribunal for Wales and the Appeal Tribunal for Wales - chapter 7
• Adjudicating on complaints about members of the First-tier Tribunal for Wales - chapter 8
• Judicial oversight and concurrence to adjudications on complaints about members of the Appeal Tribunal for Wales - chapter 8
• Chair of the Tribunal Procedure Committee for Wales, responsibility for appointing members to the Committee and for making procedural rules for the First-tier Tribunal for Wales and the Appeal Tribunal for Wales - chapter 9

128. The list of proposed duties and functions set out above is not exhaustive. We intend to ensure the office of President of Welsh Tribunals is underpinned by a statutory framework that equips the President to provide judicial leadership for the new tribunal system on its creation and as it develops in the future.