Tribunals are specialist judicial bodies that decide disputes in particular areas of law. Led by judges, they typically sit as panels with legal and non-legal expert members.
The Welsh Tribunals are the only judicial bodies administered by the Welsh Government. They hear disputes and appeals against public bodies in a range of different areas, from applications by patients detained under the Mental Health Act to drainage disputes. Taken together, they deal with about 2000 cases every year.
On Tuesday, the Senedd will debate the annual report of the President of Welsh Tribunals for 2020-21. The Legislation, Justice and Constitution (LJC) Committee took evidence from the President on 1 November. This article looks at some of the key themes from the annual report and evidence session.
How should the Welsh Tribunals be structured?
The Wales Act 2017 gave statutory recognition to seven Welsh Tribunals and established the role of President to oversee them. Sir Wyn Williams was made the first President of Welsh Tribunals in 2017.
However, the tribunals were all established at different times and have different rules and statutory bases. By contrast, the non-devolved tribunals were brought together into a single First-tier Tribunal in 2008. In 2018, the Welsh Government asked the Law Commission to review the Welsh Tribunals. The Law Commission consulted on this project last winter and made a number of provisional proposals, including:
- making all the tribunals into chambers of a unified First-tier tribunal for Wales;
- moving the administrative Welsh Tribunals Unit out of the Welsh Government and making it a non-ministerial department, to support judicial independence from government;
- making the President of Welsh Tribunals the appointing and disciplinary authority for members of the Welsh Tribunals; and
- standardising procedural rules (where appropriate).
In his annual report, the President supports the Law Commission’s provisional proposals for his office, but notes they would be likely to double the workload of the office-holder. The Law Commission expects to report with recommendations by the end of the year. The Counsel General has said he will consider the recommendations with a view to developing a Senedd bill.
How has the pandemic affected access to justice in the Welsh Tribunals?
The President of Welsh Tribunals is responsible for ensuring the Welsh Tribunals are accessible. The tribunals had to adapt to ensure people could still access justice during the pandemic.
The Mental Health Review Tribunal is by far the largest of the Welsh Tribunals. This tribunal heard cases by telephone, since not all hospitals where patients are detained have videoconferencing facilities. This may have made communication between the parties more challenging.
A survey of judicial members of tribunals in the UK by the Legal Education Foundation found 46% of respondents felt communication in mental health tribunal telephone hearings was difficult or very difficult. In evidence to the LJC Committee, the President acknowledged there was a ‘clear difficulty’ in holding such hearings remotely, but ‘the alternative was to have no hearings at all’.
The Education Tribunal (formerly the Special Educational Needs Tribunal), the Residential Property Tribunal and the Agricultural Land Tribunal were able to hold hearings via videoconference. The Legal Education Foundation’s research found that judicial office holders generally felt remote hearings worked well for short and simple hearings. However, 32% of respondents still said it was difficult or very difficult to communicate with parties in video hearings.
The Welsh Tribunals didn’t build up a significant backlog of cases during the pandemic. Some did hear fewer cases than usual. The Mental Health Review Tribunal saw a drop of about 8% to 1790, driven by applications made by or in relation to community patients (rather than detained patients). The number of cases in the Education Tribunal fell by more than 30% to 116. The President said he would be asking the President of that tribunal to look into the reasons for this.
How might the Welsh Tribunals work after the pandemic?
Even before the pandemic, there were questions about how courts and tribunals should use digital services. At the England and Wales level, the HMCTS reform programme aims to increase the use of digital services in the justice system, including by simplifying tribunal proceedings and creating online tribunal routes. In 2019, the Commission on Justice in Wales found there were opportunities for courts and tribunals to use digital services more, but warned they must be accessible for everyone. The pandemic has made these questions more pressing.
In his annual report, the President notes that some tribunal users may prefer participating in hearings remotely. In the Education Tribunal in particular, parents have reported feeling more relaxed joining remote hearings from home. Remote hearings also cost less: in 2020-21 the Welsh Tribunals registered an underspend for the first time in the President’s term of office. However, he suggests, traditional face-to-face hearings are a ‘better model for achieving justice’ when there are contentious factual issues in dispute and sworn oral evidence is needed. He says:
Over the course of the coming months the judicial leads and I will be making an in-depth assessment of the current procedural rules governing each tribunal and what should be done to develop criteria by which decisions are made as to whether remote or face-to-face hearings are held.
He says research on the impact of the pandemic on tribunals by the Legal Education Foundation and others would be ‘the foundation stone’ for this work. The Legal Education Foundation’s research recommended there should be:
- a minimum threshold of technical performance for video hearings;
- pre-hearing checks to identify vulnerable tribunal users and provide them with support to participate effectively; and
- more data on parties in remote hearings collected.
However, it also cautioned that the impact of holding remote hearings on parties in tribunal cases isn’t yet fully understood. It said there should be independent research on the impact of remote hearings on outcomes and perceptions of a representative sample of tribunal users. Until then, it said remote hearings should be restricted to short, straightforward hearings in which all parties are represented and have good internet access.
Article by Lucy Valsamidis, Senedd Research, Welsh Parliament