Proposals to reform devolved Welsh tribunals would create unified tribunal system
Improvements to the fragmented and complicated tribunals system in Wales have today [16 December 2020] been proposed by the Law Commission. The proposals, which are now being consulted on, aim to sweep away complexity and help create a single system for tribunals in Wales.
A tribunal is a body set up to settle disputes and to review public bodies’ decisions. They provide justice to some of the most vulnerable people in our society. But the rules and procedures for the devolved Welsh tribunals are complicated and inconsistent, and in some instances, unfit for purpose.
The Law Commission’s proposals to reform the system include:
- Replacing the various existing tribunals with a unified first-tier tribunal, subdivided into chambers covering broad areas of law. The new unified first-tier tribunal would create a flexible framework, capable of responding to future changes in demand.
- Where appropriate, standardising the procedural rules across tribunals. This would include standardising rules regarding remote hearings and submitting documents electronically in response to the COVID-19 pandemic.
- We propose that a committee (the Tribunal Procedure Committee for Wales) should be created to review and improve the rules, ensuring that rules remain consistent across tribunals.
- Reinforcing structural independence by reforming the existing Welsh Tribunals Unit (the part of the Welsh Government that administers some devolved tribunals) into a non-ministerial department, giving it greater separation from the rest of the Welsh Government.
- Bringing the Valuation Tribunal for Wales and school exclusion appeal panels into the system of tribunals, increasing judicial oversight and, in the case of school exclusion appeal panels, introducing a new right of appeal.
Nicholas Paines QC, Commissioner for Public and Welsh Law said:
“The tribunal system in Wales doesn’t work as well as it could. The governing legislation is fragmented and in large part decades old and in need of an overhaul.”
“Our proposals aim to sweep away this complexity and create a single system for tribunals fit for the 21st Century.”
“We look forward to reading the responses to the consultation.”
Issues with devolved tribunals in Wales
The tribunal system in England and Wales evolved haphazardly, with tribunals being created whenever an individual government department thought it was necessary. Each individual tribunal was set up to tackle a specific problem, resulting in an unplanned and inflexible system. In 2007 an Act of the UK Parliament rationalised many of the tribunals that operate across the United Kingdom or parts of it into a single structure. But tribunals that were devolved in Wales were left out, leaving the old fragmented system in place.
Because the tribunals were developed at different times and for different purposes, there are gaps and inconsistencies in the legislation. Processes and procedures (such as the rules around appointment of judges, or making procedural rules) vary from one tribunal to another. The creation of the office of President of Welsh Tribunals has done much to unify the tribunals; but there is a limit to what can be done without reform of the underlying legal structures.
The lack of coherence has prevented the tribunal system developing in response to the changing needs of its users. The Justice in Wales Commission identified this as a problem in 2019, recommending that more use should be made of devolved tribunals in future Welsh legislation. Our proposals will help make that possible.
Proposals in detail
To rectify these issues with the devolved tribunals, the Law Commission has proposed a number of reforms, including:
Structure of tribunals
- Replacing the existing tribunals with a unified first-tier tribunal, subdivided into chambers based around different areas of law – for example, property, education and mental health. This structure would lead to efficiency gains through pooling resources whilst also preserving existing expertise.
- Bringing the Valuation Tribunal for Wales and school exclusion appeal panels into the broader system of tribunals, under the supervision of the President of Welsh Tribunals. This would increase the independence of school exclusion appeal panels as they would no longer be organised by the local authority whose decisions are being challenged at the panel hearing.
- Within each chamber of the first-tier tribunal, combining existing tribunals where they operate in the same area of law and it would be beneficial to do so. For example, the two Registered School Inspectors and Registered Nursery Education Inspectors Appeal Tribunals should be brought, along with school exclusion appeal panels and the Special Educational Needs Tribunal for Wales, into an education chamber.
Procedures and rules
- Where appropriate, standardising procedural rules across shared areas such as service of documents, or approach to evidence. This would make the rules more accessible for users. It would also provide simplicity for administrative staff and judges who work across multiple tribunals, as they would not have to familiarise themselves with a new set of procedural rules when moving into a new jurisdiction.
- The creation of a committee (the Tribunal Procedure Committee for Wales) to review and improve the rules, ensuring that rules remain up-to-date and consistent across tribunals.
- Taking advantage of technological advances to ensure that the tribunal system can be flexible and respond to crises such as the COVID-19 pandemic and broader long term trends. This includes allowing documents to be served electronically and standardised rules for remote hearings where appropriate.
- Some of the devolved tribunals are currently run by a unit of the Welsh Government: the Welsh Tribunals Unit. A greater degree of structural independence is appropriate given that many cases heard in the tribunals involve decisions of the Welsh Government or local government. Our reforms would reinforce judicial independence by remodelling the existing Welsh Tribunals Unit into a non-ministerial department, making it structurally separate from the rest of the Welsh Government.
- Creating a greater role for the President of Welsh Tribunals, making the President responsible for the appointment and discipline of tribunal members (along with the Welsh Government, for more senior appointments) as well as chairing the Tribunal Procedure Committee for Wales and also appointing its members.
The Law Commission is consulting on these proposals and has also posed a series of questions. The consultation is open until [19 March 2021]. Following the consultation period, the Law Commission will use the responses to improve the proposed policies and generate final recommendations for reform. It aims to publish the final report in the summer of 2021.