Administrative justice in Wales – legacy report and the way forward

By Ray Burningham

In August this year the Welsh Government published the legacy report of the Committee for Administrative Justice and Tribunals Wales (CAJTW), whose life came to an end in March 2016 after two years of work. The report was informed by the Committee’s own work and by a research project commissioned by the Committee and conducted by Bangor Law School. The research report, entitled ‘Understanding Administrative Justice In Wales’, was published in November 2015 and provided the first comprehensive overview of the administrative justice system in Wales. UKAJI published a summary of the report on our blog here.

Administrative justice is more fully devolved in Wales than is generally realised. In areas such as housing, education, health and planning, Wales now largely has its own administrative law, and the Welsh Government has responsibility for relevant justice policy and daily administration. An increasingly distinct Welsh approach to administrative justice is perhaps inevitable, and the legacy report, Administrative Justice – A Cornerstone of Social Justice in Wales, sets out the Committee’s recommended reform priorities for the next five years.

Right First Time

From the citizen’s point of view, it is much better for public services to get things right in the first place than to find themselves involved with redress mechanisms. However, the Williams Commission on Public Services Governance and Delivery in Wales. which reported in January 2014, concluded, inter alia, that the Welsh public sector was too crowded and too complex to cope with the severe pressures that will continue to be placed on it; that many public organisations in Wales are too small and slow to respond to pressure for change; and that values and cultures within the Welsh public sector are not aligned to meet current and future challenges. The Welsh Government had prioritised public service improvement and has sought to improve complaints handling, and the Committee’s legacy report makes recommendations for strengthening redress mechanisms and better training as part of the improvement process.

An increasingly distinct Welsh approach to administrative justice is perhaps inevitable.

Tribunal reform

Most tribunals still operate on an England and Wales basis but some tribunals, including the Special Educational Needs Tribunal for Wales; the Agricultural Land Tribunal for Wales; Adjudication Panel for Wales, Mental Health Review Tribunal for Wales and the Residential Property Tribunal for Wales are devolved. In 2014 the first tribunal created under legislation enacted by National Assembly, the Welsh Language Tribunal, was set up. These tribunals are all administered by the Welsh Government, and since 2010 a great deal of work has taken place to rationalise their administrative arrangements.

A justice policy team was also established in the Welsh Government for the first time in 2014. While administrative rationalisation has been a considerable success, there remain issues concerning the status of the judiciary in the devolved tribunals. The judiciary in the devolved tribunals are not a fully integral part of the judiciary for England and Wales, and there has been a lack of clarity concerning some arrangements for their appointment, training, conduct and discipline. Statutory responsibilities for these matters are not clear in all cases. The legacy report argues that arrangements in Wales for the aspects of the justice system that have been devolved should at least be on a par with the arrangements in England, and recommends that formal agreements should be put in place where there is no room for doubt about roles and responsibilities.

Some devolved tribunals are not administered directly by the Welsh Government. School admission and exclusion appeal panels are administered by local authorities. The Valuation Tribunal for Wales, although a national tribunal funded by the Welsh Government, retains a regional structure and close associations with Welsh local authorities, which have a vested interest in its decisions. The Committee recommends that Wales-wide structures are the right way forward for these jurisdictions.

Ad hoc redress schemes

The Welsh Government has established various ad hoc redress schemes through legislation enacted by the Assembly which have some of the characteristics of a tribunal but which do not, and are not intended, to meet all the standards required of the tribunal in relation to such matters as the extent of their independence from Government, their structure, their openness to public scrutiny and their procedures. These include Independent Review of Determination Panels; The Discretionary Assistance Fund for Wales; and Continuing Healthcare Review Panels. The committee highlighted potential pitfalls both for in-house and outsourced ad hoc schemes and believes there are risks associated with setting up schemes that are not based upon clear principles and do not conform to minimum standards.

The availability of advice is a key issue for the effective operation of the administrative justice system.

Advice and information

The availability of advice is a key issue for the effective operation of the administrative justice system. The National Advice Network, set up by the Welsh Government, has developed a strategic approach to the development of advice services in Wales, which will come to life in the Welsh Government’s Information and Advice Action Plan early next year. The availability of information about administrative justice is important for both citizens and their advisers, and Law Wales/Cyfraith Cymru, a  website set up in 2015 through collaboration between the Welsh Government and Westlaw UK, aims to provide explanatory narrative and commentary on all areas of law devolved to Wales. The development of the content is work in progress and the legacy report makes recommendations to highlight where content concerning administrative justice can be improved.

Assembly Members have a particular role to play as legislators and as scrutineers as the volume of Welsh legislation increases.

The role of the National Assembly

The research conducted by Bangor Law School included a short survey of elected representatives in Wales, who were asked: ‘In order of most regular occurrence, what are the four most common topics of concern presented to you by your constituents?’ The most common issues were health, welfare benefits/reform, immigration, council services, education and planning-related issue. These are all issues for which the administrative justice system provides a voice for citizens and routes for redress through complaints or appeals. The Committee argued that elected members have an important part to play in the system through the advice and support they offer to in their constituency work. Assembly Members have a particular role to play as legislators and as scrutineers as the volume of Welsh legislation increases.

Guiding principles

The legacy report argues that a distinctive Welsh approach founded on a belief in social justice must rest on a clear set of principles. It offers a template to inform further work by the Welsh Government. In this respect the members of the former Committee will no doubt welcome the Welsh Government’s response to the legacy report, which notes the template closely reflects existing values and legislative provisions that inform working practices, and that the CAJTW formulation will provide a helpful source of guidance for the future. The Committee members will also no doubt hope for real urgency in carrying forward work on the other recommendations in the report, in which they said: ‘Our proposals imply quite a lot of work and some resource … . However the potential for embarrassment is very real if the rate of progress achieved in recent years is not maintained.’

About the author:

Ray Burningham is a consultant and member of the UKAJI core team. He was formerly secretary to the Committee on Administrative Justice & Tribunals Wales.