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211. The reforms set out in this White Paper are important in and of themselves. But they are also important steps on a longer journey, which the Welsh devolution settlement is taking, towards a sustainable constitutional framework which has the greatest possible democratic legitimacy, and is best placed to meet the needs of the people of Wales.

212. In particular, the establishment of the First-Tier Tribunal for Wales and Appeal Tribunal for Wales has the potential to directly enable the successful devolution of parts of the justice system; and more indirectly, it is an indicator of the approach that the Welsh Government would take in designing and overseeing a devolved justice system.

213. This chapter looks particularly at:

  1. How a reformed tribunal system can support the development of a stronger justice system even ahead of potential further devolution
  2. The interaction between tribunals reform and any further devolution of justice, including youth justice and (subsequently) the justice system more broadly – above all the courts.

Strengthening the justice system under the current constitutional settlement

214. The reforms we propose in this White Paper will make a significant contribution to the improved operation of the justice system in Wales. Even if there was no further expansion of our plans for reform beyond the initial rationalisation measures set out in this paper, those measures will give it greater independence, coherence, accessibility and efficiency.

215. However, the structural reforms to the tribunals system set out in this paper are also steps on a journey of improvement for justice in Wales.

216. Part of that journey of improvement will be bringing more functions, over time, within the ambit of the new tribunals system. Within its areas of competence the Senedd is able to establish further tribunals or allocate new functions to the existing devolved tribunals. Just as school exclusion appeals will be brought into the scope of the new First-Tier and Appeal Tribunals on their inception, other functions will follow over time, where it is thought that they might benefit from the approach taken by tribunals and the associated characteristics (such as the relative informality, at least in comparison to a court).

217. In determining which disputes should be put to the new tribunals structure, it will be important to consider the other means of dispute resolution potentially available – not just courts, but also other forms of dispute resolution such as ombudsmen, mediation, arbitration or conciliation. The Commission on Justice in Wales (“the Thomas Commission”) reviewed the operation of the justice systems in Wales and made recommendations concerning the civil and administrative justice system in Wales (Justice in Wales for the people of Wales).

218. The Thomas Commission concluded, amongst other things that:

resolving a dispute is complex for many reasons, including the lack of co-ordination between the courts, tribunals and different forms of alternative dispute resolution (Justice in Wales for the people of Wales, Executive summary, see paragraph 15).

219. The Thomas Commission recommended that:

Dispute resolution before courts, tribunals, alternative dispute resolution and ombudsmen, as well as dispute resolution in respect of administrative law, should be promoted and coordinated in Wales through a body chaired by a senior judge (Justice in Wales for the people of Wales recommendation 21, paragraph 5.55, page 260).

220. The Administrative Justice and Tribunals Council (“the AJTC”) Welsh Committee review of tribunals operating in Wales suggested a unified whole system approach to tribunal system in Wales as the underpinning to more effective administrative justice in Wales.

221. Proposals for reform of devolved tribunals in Wales as set out in the white paper represent a significant step forward for Wales’ nascent justice system. It is a key part of the wider and civil administrative landscape. Beyond the immediate development of legislative proposals based on this consultation, it is vital the operation of the wider landscape is kept under review.

Consultation question 40

Do you agree the operation of civil and administrative justice in Wales should be kept under review? And, if so, how should this be done?

222. In Chapter 5, we also set out how, through establishing a board to govern Tribunals Wales and reporting requirements for that board, we could ensure there is transparent monitoring of the system’s performance, of user satisfaction, and of information relating to diversity within the system. Monitoring this information consistently is not an end in itself – but it will allow a platform on which the system can build plans for the future that establish a culture of continual improvement.

223. However, there are also limits to what we can achieve to improve the justice system in Wales within the confines of the current system, where responsibility for justice remains largely vested in the UK government. There are therefore further challenges ahead to properly and fully align justice matters with the operation of services that are devolved to and delivered in Wales.

Devolution of justice

224. The Thomas Commission unanimously recommended full legislative devolution of justice and policing. The most important recommendation in the context of this paper was the creation of a unified system of courts and tribunals in Wales, for determining (among other things) all civil and administrative law disputes (Justice in Wales for the people of Wales, recommendation 22, paragraph 5.56, page 260).

225. The operation of courts and tribunals by a single service is of course something that currently happens in England, and in Scotland. It was recommended in the light of observations about whether the current division of responsibilities between courts and tribunals is rational and comprehensible to service users.

226. The legislation set out in this paper sets a clear marker for how we could operate a courts and tribunals service in future – as a statutory body, with the guarantee of independence that is provided by that model.

227. As we said in Delivering Justice for Wales, "we do not see reform of the justice system in Wales being a single event, but rather a process of change over time, prioritising those areas where we can most improve outcomes for Welsh citizens”.

228. The Commission on the UK’s Future established by the UK Labour Party (“the Brown Commission”) has given one answer as to how that process of change might commence. The Brown Commission noted that one of the stark differences between the Welsh and Scottish devolution settlements is the devolution of matters relating to justice and policing, and that there is no reason of principle why such devolution should be less in Wales. In its report, the Brown Commission recommended that the next UK Labour government should embark upon the devolution of youth justice and the probation service (A New Britain: Renewing our Democracy and Rebuilding our Economy. See “Enhancing Wales’ powers of self-government” and recommendation 24, pages 112 -113), while also engaging constructively with the recommendations of the Independent Commission on the Constitutional Future of Wales, which is due to report by the end of 2023.

229. As a place to end this paper, the devolution of youth justice offers an excellent example of the potential opportunities offered both by tribunal reform and by devolution of justice. It is easy to see how a tribunal setting could in many ways be better than a court setting for youth justice matters, because tribunals are a more informal approach to adjudicating on matters compared to courts. Tribunals such as the Education Tribunal for Wales have long experience of giving the highest priority to the voice of the child, of understanding and making recommendations around children’s needs, and creating environments and ways of working that allow children to participate in proceedings in a way that minimises trauma to them.

230. Some magistrates do receive specific training and develop considerable experience and expertise in working with children who offend, and consideration of their rights and welfare. Some cases in the Magistrates’ Courts are also heard by District Judges or Deputy District Judges, who will have professional legal qualifications and may have specific qualifications with regard to working with children and families. However, there is still a disparity between the basis on which magistrates are recruited and the necessary prerequisites for appointment to the Education Tribunal, based on the differing functions the 2 jurisdictions generally serve.

231. The Welsh Government is already benefiting from the work of an advisory group chaired by Dr Jonathan Evans, considering the strengths and weaknesses of the current youth justice system in Wales, the potential beneficial outcomes of devolution, and the mechanisms for achieving those benefits. As part of taking forward that work, we propose to consider the potential for a role for the new tribunal system, including international experience in operating such a model.

232. At this stage, this is just one idea among many as to how youth justice might be delivered differently with devolution. But it is included here to serve as an example of the creativity that would be allowed by devolution of justice – and the opportunity it gives to take a truly holistic approach to policy making for the first time.

233. In the meantime, our reforms to tribunals set a clear precedent of the approach we would take to the management of justice in Wales, guided by the principle of judicial independence and the need to ensure all the people of Wales have proper access to justice, wherever and whenever it is needed.