Comment :
The Tribunal Reform Programme: Issues for Wales
Speech by His Honour Judge Gary Hickinbottom at the Council on Tribunals' Conference in Wales on 21 June 2007
The tribunal reform programme is built on two main foundation stones.
First, there is the principle that responsibility for tribunals and their administration should not lie with those whose policy or decisions it is the tribunal's duty to consider. Tribunals are part of the justice system. In substance and appearance they should therefore be independent from the executive government whose decisions, usually, are the subject of challenge before them. Otherwise, as Sir Andrew Leggatt put it in his report, Tribunals for Users, "For citizens who wish to challenge the Government, every appeal is an away game".
This principle of separation of powers is of considerable constitutional importance - but, unlike perhaps all such principles, it is also of direct vital concern in the minds of the public. In the tribunal world, we are all aware that appellants against Government decisions are anxious that their appeal is heard by someone independent of the system in respect of which they are disgruntled; which - sometimes rightly, often wrongly; but either way usually fervently - they consider has simply not listened to what they have to say. This separation of powers is essential for public confidence in the administrative decision making process as a whole.
In pursuit of this principle, Lord Irvine when Lord Chancellor obtained the approval of the sponsoring Government Departments of all UK and GB tribunals for the transfer of those tribunals to the Lord Chancellor's Department, now of course the Ministry of Justice. In relation to this principle, those approvals were invaluable. It is to be hoped that future Secretaries of State in the new ministry - whoever they may be - are properly sensitive to and protective of the principle of separation of powers.
The second foundation - logically following the first - is that the administration of tribunals, which was frankly ramshackle, should be made more efficient. The problems of tribunals in this area were well-recognised in the Leggatt Report, which refused to use the term "tribunal system" on the basis that tribunals so lacked any form of organisation it would be a misnomer. The inefficiencies of the pre-reform tribunals were legion, particularly because of the lack of co-ordination which resulted from tribunals being administered by sponsoring departments often without any regard to the work of other departments or tribunals outwith their control. So, with regard to estate, there were multiple tribunal hearing rooms in many towns and cities, with low usage, whilst other tribunals had hearings in small hotel rooms and worse. Tribunal judges were underemployed, despite there being immense amounts of work that they could have done in other tribunals. Competitions for appointments were duplous, with many candidates having to apply in many competitions for similar posts. Money was inefficiently used - although, in some ways, that was hidden by the tribunal's expenses being only a tiny part of the overall budget for the sponsoring department. In respect of onward appeals, some were to a second tier tribunal, some to the High Court/Court of Session, some were to a second appeal court. Other challenges had to be by way of judicial review, rather than full appeal. The route of appeal - often difficult to discern - was usually the result of historical accident.
The problems of inefficiency have been tackled in the reform programme by the evolution of a new co-ordinated system under the Tribunals Service, in which tribunals are being rationalised. Under the Bill, a system of first-tier chambers will be set up, with a more or less common appeal to a second tier tribunal - and thence to the court system at Court of Appeal/Inner House level. There is to be rationalisation of estate, almost certainly at first-tier on a regional basis: and the ability simply to cross-assign members of the tribunal judiciary, including non-legal members.
These are the pillars of the reformed system - the principles that those involved in the reform programme have in mind when going forward. In relation to these principles, what particular issues are there for Wales?
It is generally taken that, unlike in Scotland and Northern Ireland, justice in Wales is not devolved. There is no separate justice system here, and justice is a retained function of the Westminster Government. If only things were that simple.
It is important to appreciate that justice has, to an extent, already been devolved. Because tribunals were administered by sponsoring Government Departments, where substantive areas of government have been devolved, the tribunals within those areas have been devolved too. As I said earlier, tribunals are part of the justice system - in fact a very significant part - and insofar as they have been devolved, part of the justice system has been devolved too.
This should of course come as no surprise, because in (say) Scotland we see the reverse side of the same coin. Justice is a devolved function in Scotland: but in substantive areas which have been retained such as welfare benefits the relevant tribunals are not devolved. The Social Security Commissioners in Scotland are not devolved - they are recruited and paid by the Ministry of Justice, not the Scottish Parliament.
So, in Wales we have devolved and non-devolved tribunals. The retained tribunals will continue to be the subject of the reform programme. They will fall within the Tribunals Service, and be administered from London - although practically from a regional centre for Wales & the West, which I sincerely hope will be in Cardiff.
Turning to the devolved tribunals, where do and should these stand when measured against the two principles of reform I mentioned?
They are of course administered by the Welsh Assembly Government: and, because justice is not regarded as being devolved, they are administered effectively by the old style "sponsoring departments". Even if this were compliant with the European Convention on Human Rights, this failure properly to separate executive and judicial functions of Government would be regrettable: appellants in Wales are just as capable of being dissatisfied with an "away game" appeal as those across the water. Disgruntlement recognises no national boundaries. Of course these issues are not easy, but it is to be hoped that the Assembly Government carefully consider ways in which this issue can be addressed - by, for example, ensuring that the administration of devolved tribunals is taken away from the departments whose decisions are being challenged, and put into some separate and independent arm of Government. In practice, this is in some ways more difficult in a smaller jurisdiction: but other countries have shown that it is not only possible, but can be effective. The potential benefit is something to which I shall return.
Separation of powers would not only be constitutionally appropriate, but it would also help in addressing the challenge of the second principle - the co-ordination and rationalisation of the tribunal system in Wales. The challenge of this is obviously substantial. In Northern Ireland, where subject to ratification by the new Assembly a separate reform programme is pressing forward in which the Courts Service and Tribunals Service are being merged, it has always seemed to me that no two tribunals have precisely the same constitutional and administrative set up: although whether such diversity is by chance or design is less clear. The challenges brought about in a devolutionary complex justice system are evident in Scotland too. I have mentioned that the Social Security Commissioners are not devolved: but their offices and staff are treated as being devolved. At least, they are provided by the Scottish Government. There is no difficulty with that - except that it requires good local communication. However at least in Scotland there is only one office of government with which we have to deal - that of justice in Edinburgh. In Wales, such co-operation will be the more difficult if devolved tribunal justice remains dispersed.
For an efficient tribunal system in Wales, we need to develop systems that will enable horizontal and vertical co-ordination and co-operation: but, because of devolution, we have also a third dimension, because we also have the factor of devolved/non-devolved.
Let me give some practical examples.
First, tribunal judges and members. In UK tribunals there is increasing recognition of the benefits of cross ticketing, to enable tribunal members to sit in any tribunal jurisdiction where they have appropriate experience and expertise, and where they are required. That ability to use tribunal members flexibly will be enshrined in the Act: but such cross assignments will only be able to take place within Tribunal Service tribunals, and not across into devolved tribunals. If devolved tribunals do not have this flexibility - and they will not have it under the Act - this would be regrettable. For example, they will not be able to "borrow" tribunal judges or members from their English counterparts. They will be required to hold parallel competitions which, for a small jurisdiction, will be relatively more expensive. The Welsh tribunals will lack the inherent flexibility that easy cross assignment will bring. By the very nature of this problem, it can only be addressed on a cross border basis: and that would again be easier if there were a focus of tribunal justice in the WAG.
Second, estate. The Tribunals Service is currently engaged in a review of estate, with a view to rationalisation. However, in Wales, this should not ignore the needs of devolved tribunals. Indeed, in Wales, there should in my view be a co-ordinated policy for "justice estate" covering the courts system as well as both devolved and non-devolved tribunals, to ensure that local justice is maintained in Wales, and particularly rural Wales. By co-ordinating requirements for office administration and hearing rooms across all of the various shades of the justice system in Wales, it will render viable facilities for justice in areas where part of the system looked at alone could not make a business case.
What are the appropriate organs for this effort in co-ordination? I have every expectation that the Welsh Committee of the Administrative Justice Council envisaged in the Bill will be an effective tool. The tribunal judges in Wales have already set up a Welsh Tribunals Judicial Group, at which these issues are considered. As already indicated, there would be a welcome for any initiative by the new Welsh Assembly Government with a view to co-ordinating the administration of the Welsh devolved tribunals, and enabling a proper dialogue with both the judiciary in Wales and the Ministry of Justice in relation to matters which overarch both retained and devolved tribunals.
The challenges posed by this need in Wales for co-ordination should not be underestimated. However, I firmly believe that, if these challenges are met, the potential benefits of success in Wales would be very great. Our size - small - is sometimes an advantage. We are able to do things that would be impossible for larger jurisdictions - and hold a wider perspective that would be possible in such jurisdictions. For example, the Social Security Commissioners, Employment Appeals Tribunal and the Transport Tribunal - all second tier appeal tribunals - already sit regularly at the Civil Justice Centre here in Cardiff. Under the Bill, it is proposed that appeals from at least some first tier devolved tribunals (SENT and possibly the Welsh MHRT) will lie to the new Upper Tier Tribunal (because challenges at the moment are to the (non-devolved) High Court). Facilities in Cardiff for issuing and hearing second tier tribunal appeals will be needed in any event: and there will be an opportunity to co-ordinate this administration with that of the Administrative Court which already sits at the Civil Justice Centre and which, it is proposed, will have a permanent office presence in Cardiff in due course. Someone who unsuccessfully challenges a Government decision with which he is not satisfied ought to be able to attend a single centre to seek to review a decision on a question of law, whether the appropriate route is by way of judicial review or appeal to a tribunal. Such a co-ordinated approach is inconceivable in England or even in London: but because of the national cohesion and relative size of Wales, it is least a possibility here. The potential benefits for users are obvious and great.
In Wales, we face a spectrum of opportunity. The UK tribunal reform programme is forging ahead. Wales may be left behind. However, if we take the initiative in coherently co-ordinating the various elements of the justice system in Wales - devolved and non-devolved, court system and tribunal system - which with a will can be done, then the coming months and years will provide perhaps a unique opportunity for giving the people of Wales better access to a significantly better administrative justice system: and that, I am sure, is our common aim.
Judge Hickinbottom is the Chief Social Security, Child Support and Pensions Appeal Commissioner and Designated Civil Judge for Wales