By Huw Pritchard
In this blog post, Huw Pritchard explores the changes to tribunals to come under the Wales Act 2017 and the emergence of a Welsh administrative justice system.
The Secretary of State for Wales has announced that the main provisions of the Wales Act 2017 will come into force in April 2018. This will introduce a reserved powers model of devolution to Wales, similar to that in Scotland. It will also bring vital legislative reform to the devolved tribunals in Wales which will further encapsulate the concept of an emerging Welsh administrative justice system.
Devolution in Wales was never intended to affect the joint jurisdiction of England and Wales. However, there had been history of some administrative tribunals operating on a Wales basis prior to devolution, and other tribunals, which fitted within devolved fields such as health and education, were devolved to the National Assembly, and subsequently to the Welsh Government. That meant, whether by design or not, a group of administrative tribunals have been devolved, and this has resulted in the Welsh Government exercising justice functions and holding responsibility over justice institutions.
Devolved tribunals in Wales were outside the Leggatt Review and the subsequent structure established by the Tribunals, Courts and Enforcement Act 2007. This was not an uncommon position and is also reflected in the development of devolved tribunals in Scotland and Northern Ireland. The fundamental difference in Wales was that there were no distinct independent justice institutions or bodies which could be allocated responsibilities over these tribunals.
Tribunal reform in Wales
The Administrative Justice & Tribunals Council (AJTC) Welsh Committee highlighted the ad hoc nature of tribunals in its ‘Review of Tribunals Operating in Wales‘ (2010). Fundamentally, issues regarding independence, impartiality and the need to improve working between tribunal judiciary were key recommendations.
The Welsh Government undertook its own review of devolved tribunals in March 2014 and, alongside the previous recommendations of the AJTC, undertook administrative reforms to engage with the weaknesses in the system. This included establishing a Welsh Tribunals Unit (WTU) to administer tribunals away from their sponsoring departments and establishing a formal relationship with the Judicial Appointments Commission for posts in devolved tribunals.
The reforms in the Wales Act bring the legislative changes required to continue with these reforms to ensure a greater level of independence and impartiality.
Wales Act 2017
The Act does three key things in relation to devolved tribunals. First, it gives a definition of a ‘devolved tribunal’. It then defines a further core group of ‘Welsh Tribunals’. Lastly, it establishes the post of President of Welsh Tribunals.
‘Devolved tribunals’ are defined as those having functions that do not relate to a reserved matter and which are exercisable only in relation to Wales. This allows devolved tribunals to be ‘carved out’ from the general reservation for courts and tribunals and for them to be recognised as ‘Devolved Welsh Authorities’.
The further definition of a ‘Welsh Tribunal’ lists the tribunals currently administered by the WTU (section 59). It is over these tribunals that the President of Welsh Tribunals will have responsibility over practice and procedure, training, guidance and welfare of tribunal members, and represent the views of tribunal members to Welsh Ministers and the National Assembly. This responds to the need for independent judicial leadership and support. The Act also allows cross-deployment of tribunal members in Wales between Welsh tribunals, and between Welsh tribunals and the First-tier Tribunal. The Act therefore is an important step in responding to the key recommendations of the AJTC Welsh Committee in 2010 and the Welsh Government review in 2014.
Wider context of reforms
A contentious, and unresolved, issue during the passing of the 2017 Act was the sustainability of a new reserved powers model without a recognition of a distinct Welsh jurisdiction and further devolution of justice functions. It is tempting, and inevitable, to look at tribunal reforms in the Act through those constitutional lenses as compromises in that debate. However, the UK Government took a strong stance on retaining the single jurisdiction, and so tribunal reform was seen as a limited and necessary reform to a disjointed administrative system, not as an indication of wider reforms.
The corresponding attitude of the Welsh Government underlines its stance in favour of a distinct legal jurisdiction. The Counsel General published a written statement in March 2017 which highlighted that the reforms to improve the independence of Welsh tribunals should not only be seen as an issue of improved administrative justice but also as a wider part of moving towards a distinct legal jurisdiction and as a matter of respecting the ‘integrity of Wales’ own developing judicial system’.
Tribunal reform is a key step forward for administrative justice in Wales. It could also have longer term constitutional implications.
About the author:
Dr Huw Pritchard is a lecturer in devolved law and governance at Cardiff School of Law and Politics, Cardiff University, and a member of the Wales Governance Centre. He has a chapter on ‘Building a Welsh Jurisdiction through Administrative Justice’ in a forthcoming book: Nason, S. (ed.) Administrative Justice in Wales and Comparative Perspectives (UWP, forthcoming September 2017).