Estimated reading time: 5 Minutes
25 August 2020
The Welsh Tribunals are the only judicial bodies administered by the Welsh Government. The Wales Act 2017 created the role of the President of Welsh Tribunals. Sir Wyn Williams was appointed by the Lord Chief Justice of England and Wales in 2017.
The President has a supervisory role over all the Welsh tribunals. Each tribunal also has its own judicial lead and members. The Welsh Government’s Welsh Tribunals Unit provides administrative support for the Welsh Tribunals. The tribunals have a range of different responsibilities. Together, they deal with about 2000 cases every year.
- The Mental Health Review Tribunal deals with cases of patients subject to restrictions under mental health legislation;
- The Residential Property Tribunal deals with private law rental and leasehold property cases and with appeals against Rent Smart Wales decisions;
- The Agricultural Land Tribunal hears disputes on agricultural tenancy agreements and drainage;
- The Special Educational Needs Tribunal for Wales adjudicates on appeals on support for children and young people with additional learning needs and on disability discrimination in schools;
- The Adjudication Panel for Wales deals with breaches of codes of conduct by members of councils and other authorities; and
- The Welsh Language Tribunal deals with appeals against the decisions of the Welsh Language Commissioner.
The Senedd’s Legislation, Justice and Constitution (LJC) Committee took evidence from the President on 13 July as part of its Making Justice Work in Wales inquiry. This blog looks at three key themes from the President’s annual reports and the evidence session – the structure of the Welsh tribunals, performance, and access to justice.
How should the Welsh Tribunals be structured?
In recent years, questions have been raised about whether and how the structure of the Welsh Tribunals needs to change. The Commission on Justice in Wales made recommendations on the role of the tribunals in October 2019 and a project by the Law Commission is due to report next year. However, the President concludes in his second annual report (PDF, 5MB) that:
….the time is fast approaching when a complete re-appraisal of the post of President of Welsh Tribunals is becoming desirable, quite independently of the work of the Law Commission if necessary, so that planning can commence in good time to find my successor.
The President identifies the independence of the Welsh Tribunals as one key issue. The President recommends that the Welsh Tribunals Unit should be an executive agency like Her Majesty’s Courts and Tribunals Service (HMCTS) to protect judicial independence. He says that (PDF, 5MB) he raised this with the First Minister, but no progress was made.
In evidence to the LJC Committee, the President also said that he had discussed the possibility of adopting a model along the lines of the Scottish Courts and Tribunals Service with the First Minister. This body is independent and has an executive board chaired by the Lord President, the most senior judge in Scotland.
The Welsh Tribunals are not the only judicial bodies that resolve civil and administrative law disputes in Wales. Disputes outside their remit are generally dealt with by non-devolved bodies, including the county court and the administrative court. The Commission on Justice in Wales recommended that the Senedd and Welsh Government should designate the Welsh tribunals – rather than the county court, for example – for disputes on future Welsh legislation. In evidence to the LJC Committee, the President said ‘very serious consideration’ should be given to this.
The Commission on Justice in Wales also identified a number of devolved justice bodies that are not under the supervision of the President of Welsh Tribunals. For example, the Valuation Tribunal for Wales deals with appeals about non-domestic rates and council tax and the Public Services Ombudsman for Wales considers complaints about public bodies. The Commission argued that civil and administrative justice should be better coordinated and recommended that such bodies should be brought under the supervision of the President. In his second report, the President states (PDF, 5MB) that the implementation of this recommendation would ‘very significantly enlarge’ the role of the President.
How can we tell how well the Welsh tribunals are performing?
The President of Welsh Tribunals produces an annual report each year. The judicial leads of each Welsh tribunal also publish annual reports on their websites. These all follow similar structures. Together, they provide information on spending, numbers of cases, outcomes and performance against targets.
This is different from the reporting requirements for the non-devolved tribunals. As HMCTS is an executive agency, reporting requirements for its annual report and accounts (PDF, 4.5MB) are set out in statute. HMCTS also issues a quarterly data release on the tribunals that it administers and their work. The judicial Senior President of the non-devolved tribunals prepares a separate annual report. In 2016, the Committee on Administrative Justice and Tribunals, Wales concluded that (4.5MB) a similar approach to performance reporting should be adopted in Wales.
In evidence to the LJC Committee, the President said that the judicial leads for each tribunal determined the content for their reports and said that:
it would be almost impossible, in my view, to standardise them without losing their main purpose, which is to provide information publicly, in detail, about the work of each tribunal.
How do the Welsh tribunals ensure people have access to justice?
One of the duties of the President of Welsh Tribunals is to ensure that the Welsh Tribunals are accessible. Legal aid is available only in the Mental Health Review Tribunal and in some circumstances in the Special Educational Needs Tribunal. In evidence to the LJC Committee, the President outlined how the Welsh Tribunals seek to support litigants in person (people without legal representation).
The Welsh Tribunals have started holding remote hearings during the coronavirus pandemic. In evidence to the LJC Committee, the President highlighted advantages of remote hearings, such as allowing litigants in the Special Educational Needs Tribunal to take part in hearings from their own homes. He said that ‘I foresee that digitalised working and remote hearings will become more of a feature of our tribunals as we go into the future’.
However, concerns have been raised about the impact of the pandemic on access to justice. In its rapid review of the impact of the pandemic, the Civil Justice Council reported (PDF, 7.8MB) that respondents felt ‘the net impact was to artificially suppress the numbers of litigants in person and vulnerable people participating in hearings during this period’.
The Civil Justice Council recommended (PDF, 7.8MB) that urgent steps be taken to collect basic information on lay users, including protected characteristics, language, postcode, age, and status of representation. The Special Educational Needs Tribunal is the only Welsh Tribunal to include data on equalities in its annual report. Asked about data collection by the Committee, the President said that he would discuss this with the Welsh Tribunals Unit.
Particular concerns have been raised about the impact on access to justice of changes to Mental Health Review Tribunal procedure. During the coronavirus pandemic, hearings have been held by telephone. The President of Welsh Tribunals issued a Practice Direction jointly with the President of the Mental Health Review Tribunal, with the First Minister’s approval. This allows the tribunal to dispense with a hearing where holding one would be impractical. The Practice Direction for the equivalent tribunal in England only allows the tribunal to suggest a paper hearing and only in certain cases. The Head of the Equality and Human Rights Commission Wales Ruth Coombs raised concerns about the impact of this approach on patients in Wales in evidence to the Senedd Equality, Local Government and Communities Committee (PDF, 478KB) on 16 June. In evidence to the LJC Committee, the President said remote mental health hearings were ‘not ideal’ and confirmed that the emergency provisions had not been used.
The Senedd’s LJC Committee will take more evidence for its inquiry on Making Justice Work in Wales in the autumn.
Article by Lucy Valsamidis, Senedd Research, Welsh Parliament