A New Tribunal System for Wales: white paper - Chapter 8: Complaints and discipline

We propose:

• a uniform procedure for complaints and discipline about the conduct of all tribunal members of the new tribunals, and
• a uniform procedure for complaints about the administration of the new tribunal service.

159. Just as a coherent approach to appointments to the new tribunal system contributes to the balance between judicial independence and judicial accountability, so too does a complaints and disciplinary system that is fair, robust and transparent, meeting both the expectations of tribunal users and protecting judicial independence.

160. The current complaints and disciplinary procedures across the devolved tribunals are inconsistent. Some tribunals have policies that cover complaints about the conduct of tribunal members, some have policies that also encompass complaints about tribunal administration, and some have no policies to address either issue.

161. Our objective in proposing reformed procedures to apply to the new tribunal system in Wales is twofold: first, a uniform procedure for complaints about the conduct of all tribunal members; and second, a uniform procedure for complaints about the administration of the new tribunal service, administered by Tribunals Wales (“Tribunals Wales”, is the statutory body arms-length from Welsh Government we propose is responsible for the operational administration of the new tribunal system. See Chapter 5: Independence, for our detailed proposals).

162. We propose a consistent procedure across all chambers of the First-tier Tribunal for Wales and for the Appeal Tribunal for Wales based on the Law Commission’s recommendations .

163. In terms of the First-tier Tribunal for Wales, we propose:

1. Chamber Presidents to be responsible for investigating conduct complaints about non-legal and legal members of their respective chambers and an independent body or person to be responsible for investigating complaints about Chamber Presidents and Deputy-Presidents, and
2. On receipt of an investigatory report and recommendations, the President of Welsh Tribunals to be responsible for discipline and dismissal, if necessary, of members of the First-tier Tribunal for Wales. We propose that dismissal in respect of Chamber Presidents and Deputy Presidents should be with the concurrence of the Welsh Ministers.

164. In terms of the Appeal Tribunal for Wales, we propose that complaints about members be investigated by an independent body or person. We agree with the Law Commission’s analysis on the approach to sanctioning Appeal Tribunal members, namely based on the independent investigator’s report and recommendations, sanctions falling short of dismissal to be imposed by the First Minister with the concurrence of the President of Welsh Tribunals; powers of dismissal vesting in the First Minister alone to avoid the possibility of deadlock between the executive and the judiciary in the most serious of cases.

165. Our proposals outlined above envisage an investigatory role for an independent body or person. We have considered the Lord Chancellor’s responsibility for judicial discipline as conferred by statute and the power to make regulations about the procedure that may be followed in dealing with disciplinary matters (Section 115 and 116 of the Constitutional Reform Act 2005). The Lord Chancellor, with the agreement of the Lord Chief Justice, the Lord President of the Court of Session and Lord Chief Justice of Northern Ireland, has designated officials for the purpose of exercising functions relating to judicial discipline. The officials so designated are known collectively as the Judicial Conduct Investigations Office (“the JCIO”), technically, a department of the Ministry of Justice.

166. In practice, the JCIO is treated as an arm's-length body and operates as an independent office supporting the Lord Chancellor and the Lord Chief Justice in managing complaints about judicial office holders. This extends to members of the Welsh Tribunals where the Lord Chancellor is currently the appointing authority, but not where the Welsh Ministers are the appointing authority. There is currently no formal arrangement in place for the JCIO to support the Welsh Ministers to manage complaints about judicial office holders that the Welsh Ministers appoint, should any such complaints arise (this contrasts processes for the selection and recommendation of person for appointment where an arrangement under section 83 of the Government of Wales Act 2006 is in place between the Welsh Ministers and the JAC for the JAC to exercise those functions on behalf of the Welsh Ministers’). We are exploring with the JCIO and the UK government the practical issues around the JCIO supporting the complaints process and nominating a person or persons to carry out the investigatory role that we propose. We are also exploring other options as to the body or person placed to undertake this role..

167. We agree with the Law Commission that there should be a uniform procedure for complains about the administration of the new tribunal system by Tribunals Wales (See Annex 2, Law Commission recommendation 40).

168. As Chapter 5 discusses, we propose to create a body corporate arms-length from Welsh Government with operational responsibility for the administration of the new tribunal system (See Chapter 5: Independence, pages 36-49 on “Structural independence”, where we propose such an arms-length body is created either as a Welsh Government Sponsored Body or as a Non-Ministerial Department). We propose that complaints about the administration of the new tribunal system, including complaints about Board Members and staff of Tribunals Wales, should be dealt with in the first instance by Tribunals Wales. Appropriate internal complaints mechanisms are a key part of an effective redress and oversight system, and Tribunals Wales should be enabled to innovate to put in place a uniform complaints policy that should be easily accessible for tribunal users and that clearly articulates the procedure that a complainant is required to follow (see Public Administration and a Just Wales).

169. We further propose that Tribunals Wales in the exercise of its functions to administer the tribunal system in Wales should be subject to the jurisdiction of the Public Services Ombudsman for Wales. We do not propose the Ombudsman’s jurisdiction should extend to complains about judicial or ordinary members of the First Tier Tribunal for Wales or the Appeal Tribunal for Wales.