Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad - Y Bumed Senedd
Legislation, Justice and Constitution Committee - Fifth Senedd22/02/2021
Aelodau'r Pwyllgor a oedd yn bresennol
Committee Members in Attendance
|Carwyn Jones AS|
|Dai Lloyd AS|
|David Melding AS|
|Mick Antoniw AS||Cadeirydd y Pwyllgor|
Y rhai eraill a oedd yn bresennol
Others in Attendance
|Amy Rees||Cyfarwyddwr Cyffredinol Profiannaeth a Chymru, y Weinyddiaeth Gyfiawnder, Llywodraeth y Deyrnas Unedig|
|Director General of Probation and Wales, Ministry of Justice, United Kingdom Government|
|Henni Ouahes||Comisiwn y Gyfraith|
|Nicholas Paines KC||Comisiwn y Gyfraith|
|Rt Hon Robert Buckland MP||Yr Arglwydd Ganghellor a'r Ysgrifennydd Gwladol dros Gyfiawnder, Llywodraeth y Deyrnas Unedig|
|Lord Chancellor and Secretary of State for Justice, United Kingdom Government|
|Sarah Smith||Comisiwn y Gyfraith|
Swyddogion y Senedd a oedd yn bresennol
Senedd Officials in Attendance
|Gareth Howells||Cynghorydd Cyfreithiol|
|P Gareth Williams||Clerc|
|Sarah Sargent||Ail Glerc|
Cyfarfu'r pwyllgor drwy gynhadledd fideo.
Dechreuodd y cyfarfod am 09:00.
The committee met by video-conference.
The meeting began at 09:00.
Bore da. Good morning. I welcome Members to this virtual meeting of the Legislation, Justice and Constitution Committee. In accordance with Standing Order 34.19, I've determined that the public are excluded from the committee's meeting in order to protect public health. In accordance with Standing Order 34.21, notice of this decision was included in the agenda for this meeting. This meeting is being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual. Aside from the procedural adaptation relating to conducting proceedings remotely, all other Standing Order requirements remain in place. We have a full committee attendance. Can I just ask Members if there are any declarations of interest today? I don't see any declarations of interest. So, we can then move straight on to the—
Excuse me, Chair. David would like to make a declaration.
I beg your pardon. David Melding.
Thanks, Chair. I'm chair of the ministerial advisory group on outcomes for children. It's particularly relevant given the questions I'm likely to ask on family justice.
Thank you for that. We note that declaration of interest. Are there any others? I don't see any others.
So, we move straight on to item 2 on the agenda, making justice work in Wales, an evidence session. We welcome to the committee Robert Buckland, the Lord Chancellor and Secretary of State for Justice, and your official, Amy Rees, director general of probation and Wales, in the UK Government. Lord Chancellor, I just wonder if there any opening comments that you'd like to make. We'd like to welcome you to this committee. I believe this is your first time in attendance at this committee. Do you have any opening comments you'd like to make?
Thank you, diolch, Chair. Bore da. Good morning to the committee. It's a pleasure to be with you, and I'm particularly grateful that you've brought proceedings forward a little bit to allow for another meeting that I will be attending at 10:00. So, I will truncate my remarks in light of that time pressure, and I look forward to engaging through the dialogue that the questions, I'm sure, will open up.
Thank you for that, and we're also grateful to you for the time available. We realise how busy time is at the moment. I wonder, Lord Chancellor, perhaps as an opening matter, if you could just outline your priorities for the justice system as they relate specifically to Wales.
Thank you very much indeed, Chair. I think, first of all, we'll divide it into two areas, really—the current priorities that I have, bearing in mind the COVID pandemic, and the need to make sure that, as we come through this particular emergency, the justice system in Wales and England is resilient and is able to not just cope with the pressures that have been placed upon it, but to recover and, through that recovery, to make some permanent changes, I think, that will be beneficial to everybody who we serve.
I've been focused particularly on the need to maintain safety in our prisons. That's been, of course, an urgent priority for me and officials in Wales, and I'm joined by Amy Rees today as well, with whom I've been working closely on a range of issues to do with justice in Wales. So, on the public health issue in prisons, there's the need to make sure that, whilst public health absolutely has to take a priority, we maximise opportunities for prisoners to have contact with their families and, indeed, to perform some activities despite the restrictions that COVID places upon them. Then, in the probation service, similarly, to deliver a model that is safe for everybody in the service but at the same time maintains effective supervision of offenders in the community. And then, in courts, to keep the lights on and to make sure that the wheels of justice continue rolling. I'm sure we'll talk in more detail about the work that's been done in Wales to do that, but that has been a huge focus of mine and the judiciary in the last year and, I think, with some success. So, the challenges are particularly large, I easily admit.
With regard to onward and more general issues that are non-COVID, the delivery of probation reform has been a major part of my priorities for the justice system in Wales. As you know, Wales has led the way in the unified model, which was rolled out last year in Wales and is now delivering results across the country. All offender management or offender supervision is now in-house, and there are a number of initiatives that are being taken in Wales, most notably the sobriety tags initiative, which I'm particularly pleased by. And then, delivering the blueprints for youth justice and female offending by working with the Welsh Government and the criminal justice partners right across Wales to improve the way we deliver both those elements of our policy. Again, in particular, there have been important developments in the last year on the way in which female offenders, particularly those who have to go into custody, are going to be administered. And, again, I'm sure we can discuss that in the hour that we have.
And then, more generally, to deliver the manifesto commitments that we were elected on in 2019, which is why I've worked at pace to develop a White Paper on sentencing that was published in September of last year, and will be followed by legislation in Westminster, starting next month, to implement those measures that require legislative change, mainly in sentencing and the sentencing of the most serious and dangerous offenders, but it is accompanied by a range of non-legislative measures that are being taken, particularly with regard to changing the emphasis when it comes to the way in which offenders who are to be released from custody are to be supervised, with an emphasis on accommodation, on employment opportunities and, indeed, a strengthened probation service. All that is the subject now of renewed investment, and, of course, Wales will be playing very much a part in all of this as we develop the policies that I outlined in the White Paper, most notably on issues like mental health treatment and on improving the way in which we deal with addiction, which we know, sadly, is a driver of much reoffending in particular, which accounts for 80 per cent of all offending. So, those are my priorities at this stage.
Thank you for that, Lord Chancellor. It leads me, really, on to another point, then. Obviously, whereas justice is a reserved matter, by and large, many of the consequences, of course, related are not, and the issue of how your department and how the Ministry of Justice engages with Welsh Government to ensure that there is cohesion has obviously been an issue, and a number of bodies have been set up to tackle that. Perhaps two things: how has that relationship, that inter-governmental relationship, perhaps changed as a consequence of COVID, and how do you envisage it changing perhaps still further as we come through the COVID environment?
Well, thank you, Chair. I think that what was already a productive and mature relationship has actually deepened and widened as a result of the challenges of COVID that have faced both the Welsh Government and, indeed, the Westminster Government. I'm a great believer in communication, in making sure that all the facilities here are available, where needed, for officials in the Welsh Government, and Amy Rees is online, of course, who can help give some more direct evidence about that official level engagement, and I certainly have encouraged and given a strong steer too that I want to see more of. I think, because of that existing mature relationship, we were able quickly to work together on the issues that really mattered as the crisis took hold. I can think of the prison outbreak control group, which was about supporting the management of outbreaks in our prisons and the response to that. Chaired by Public Health Wales, it of course includes the Welsh Government and Her Majesty's Prison and Probation Service. It was meeting weekly, of course, at the height of the pressure. It's now meeting fortnightly, and that's been a very useful body for the channelling either of information from the ground in Wales and, indeed, vice versa—and I can think of a number of occasions where there was, for me, a great deal of interest in the work of that group and particular concerns that Public Health Wales had, which I wanted to be addressed to make sure there was as much consistency as possible when it came to the approach being taken in our Welsh prisons with those over the border, but, most importantly, to make sure that the resources were there in order to deal with any outbreaks that were being experienced in Welsh prisons and the secure estate more generally in Wales. Another example is the accommodating Welsh offenders strategic board—I was talking about accommodation just a moment ago. That allows the earliest discussion about accommodation for prison leavers. That's all about the prevention of homelessness, support for those released from prison—again, a very important forum, I think, that allows for that. And then, frankly, just weekly contact between HMPPS and the Welsh Government to flag concerns and agree joint action. I don't know, Chair, whether you'd want to hear from Amy Rees, from an official point of view, about the level of that engagement.
I think we'd be happy—we'd like to hear, Amy, if you're okay.
Good morning—bore da, everyone. Thank you for inviting me today. So, I chair the criminal justice in Wales group—formally the All-Wales Criminal Justice Board. That has representatives right across the justice sphere, so not just Welsh Government and officials, but also police and crime commissioners, members of the charitable sector—right across the full range of justice. At the start of the committee, we started what we called a working group. That working group seeks to look at recovery and to manage COVID. It has been the reason why I think Wales has manged to recover so quickly, because we set up this group almost immediately. They deal with issues such as, for example, how we can deal with additional courtrooms, how we can staff that from everyone's perspective and so not just HM Courts and Tribunals Service, but how we can ensure that we've got witness and care protection there, how we can ensure that the Crown Prosecution Service are able, and probation et cetera. So, right from the very beginning, in terms of management of COVID and recovery from COVID, we set up a working group from the All-Wales Criminal Justice Board that has sought to work together to try and manage the implications, and I do believe we've been very successful in doing that.
In addition, we have a forum called the justice in Wales strategy group. That is just for UK Government and for Welsh Government, where we work through criminal justice issues. For example, those are the areas that we can look at the blueprints that the Lord Chancellor mentioned earlier. And just as an example, really, of how well we work together, we also co-fund several staff. So, the Lord Chancellor also mentioned accommodation, and we actually jointly fund staff so that we can make sure that we are working together as closely as we possibly can to deal with accommodation needs at the local level in Wales.
Okay. Thank you for that. We'll follow up with certain questions on that. I wonder if I could ask a question, Lord Chancellor, really about the important issue, I think, to all of us of access to justice. You'll be aware of the various statements. The chair of the Bar Council at the end of 2018 said that cuts to legal aid represent,
'a huge threat to access to justice in our country'.
Lord Wilson of the Supreme Court said the dismantling of the UK's
'precious system of legal aid',
was placing access to justice under threat. We know that, since 2010, there's been a 38 per cent cut in legal aid. Lord Chancellor, have those cuts to legal aid damaged access to justice?
Well, I think, without going through the history of what led up to the 2012 Act and the changes to legal aid—and we can have a political debate about why that happened—we have seen, and I think a lot of us who are in this particular meeting have professional experience as well, frankly, a long, melancholy, withdrawing roar over the 25-30 years when it comes to the availability of legal aid. I know at least one person in the meeting will have a vivid memory—and I'm thinking of Carwyn Jones—of civil legal aid in a range of different areas, for example boundary disputes back in the 1990s, which, of course, went 20 or more years ago. So, we're in a position where there has been quite a withdrawal, I accept, but I think now we're in a good position on several fronts to rethink the way in which we can improve access to justice, because I think that leaving things to litigation as the default position actually often represents a failure when it comes to the service that should be offered to citizens. And that's why I'm particularly committed to early intervention—always have been. Everything I've tried to do as a Minister, even before I was Lord Chancellor, was all about the need for that early intervention, and, indeed, here in the Ministry of Justice, we are already on the path to make those interventions. First of all, the reality of litigants in person means, I believe, that they need more support. So, we've launched a £3.1 million grant to fund services to help litigants in person, and we're working in partnership with the Access To Justice Foundation, and that, or course, includes access particularly in north and mid Wales when it comes to litigants in person, but also, more generally here, the interventions that I want to make with regard to early support and legal advice, to work with existing providers, whether they are citizens advice bureaux or law centres, to make sure that as many bases as can be covered as possible are achieved. During COVID, we have provided additional investment of £4.5 million for emergency support for not-for-profit organisations, which include law centres and, in particular, has included support for organisations like Shelter Cymru and the Speakeasy Law Centre in Cardiff.
Now, I think that the position with regard to criminal legal aid is one that has long concerned me. I was very pleased to be able to introduce the first rises in graduated fees in 25 years. Now, that's important because I want to sustain a viable criminal bar and also criminal solicitors profession as well. And as a result of that, we are already embarking upon a review of criminal legal aid, the CLAR review, which was launched just before Christmas. That, of course, very much involves the legal profession in Wales and its sustainability in crime. That work will continue over the next several months—I hope it'll report later in the year—to give us a very clear set of proposals as to how we can support and sustain that very, very important sector, because it's not just a problem confined to Wales; it's clear that there's an issue right across the jurisdiction as to the sustainability of, particularly, those smaller practices when it comes to criminal legal aid, and I'm going to work as hard as I can to improve that situation, bearing in mind what I've seen over the years, again, with regard to criminal legal aid.
I think that any Government in office at the moment isn't going to, frankly, reinvent the wheel when it comes to—or turn back the clock, rather, perhaps is a better phrase, with regard to where we were with legal aid perhaps a generation or so ago, but I do think it's the duty of Ministers, me included, to think far more expansively and imaginatively about how we can actually improve access for justice, which is why issues like digitalisation and making sure that that revolution is accessible to as many people as possible is as important, in my view, as the issues that we've been discussing in this particular question.
Thank you very much for that answer. If we can move on, we may come back to some of those issues if there's time further on, Lord Chancellor. Dai Lloyd.
Diolch yn fawr, Cadeirydd. Allaf i ymddiheuro yn y lle cyntaf am ymddangosiad fy sgrin i achos mae'r haul mor gryf yma yn Abertawe y bore yma—wel, fel pob diwrnod arall, yn naturiol—mae'r heulwen yn tywynnu i mewn mewn graddau eithafol braidd ar fy sgrin. Felly, ymddiheuriadau ymlaen llaw. Ond cwestiynau ychydig bach ynglŷn â'r manylder o'r berthynas rhwng eich adran chi a Llywodraeth Cymru yn y bôn: allech chi, Arglwydd Ganghellor, nodi pa drafodaethau rydych chi wedi eu cael efo Llywodraeth Cymru, rhwng y ddau ohonoch chi, felly, ar raglen waith trawsnewid cyfiawnder? Hynny yw, mae'r rhaglen yma yna—pa drafodaethau, pa gydweithio sydd yn digwydd rhwng y ddwy Lywodraeth, felly, i wneud yn siŵr bod yna gynnydd yn y rhaglen waith trawsnewid cyfiawnder yma?
Thank you very much, Chair. May I apologise in the first instance for the appearance of my screen? Because the sun is shining so strongly here in Swansea—as it does every day, of course—the sunshine is pouring in in an extreme way on my screen, so apologies in advance for that. But questions with regard to the detail of the relationship between your department and the Welsh Government: could you, Lord Chancellor, outline what discussions you have had with the Welsh Government, between both parties, of course, on the implementation of its justice transformation work programme? This work programme is in place, so what discussions, what collaboration is taking place between both Governments to ensure that there is progress on that transformation work programme?
Thank you very much, Dr Lloyd, and you're quite right, the sun always shines in Swansea. As you know, it is where I began my practice and I lived for many years, so it's a pleasure to see you again. I'm more than happy to say that there have indeed been constructive discussions with the Welsh Government. I had a full meeting with the First Minister to discuss the Thomas commission and other, wider matters, most notably COVID-related matters, back in June of last year. He confirmed to me then that work had been paused on addressing the work of the commission, its recommendations, due to COVID-19. However, there are aspects of those recommendations that I am, frankly, keen to explore, because I think they have the potential to improve justice outcomes in Wales.
And I think that, within—. The caveat that I will issue now, and you know my view on this, is that a joint jurisdiction is a better approach. Within those parameters, I think there's a lot we can do to enhance and improve the way we work. I'm anxious to pick those issues back up, but, to give you a flavour as to where my mind is on these matters, having refreshed my memory again about some of the recommendations in that report, the issues that they raise, for example, about the establishment of problem-solving criminal courts, that's absolutely my priority; it was in my White Paper last year, and it's something that I want to pilot and roll out more extensively. Improving access to digital court services—I've already mentioned the importance that I place upon that— whilst making sure that the digital changes don't leave people behind who are not able to get that access. To work to achieve different ways of addressing the needs of women offenders whose offences have crossed the custody threshold, which is why the establishment of a new centre in Wales to house women who are in that particular category is, again, a very important priority of mine. And then to look at the way in which we can enhance the provision of data. That is something that is constantly on my mind, not just about Wales, but more generally about the justice system—the need to strengthen our data. I'm anxious to have these conversations. And I think that looking again at the way in which—Amy has referred to the criminal justice board—the way in which that operates. I'm open to new ideas and suggestions about the improvement of that, as I am with regard to family justice as well. And therefore, I think that, on a practical level, there's a lot we can get our teeth into, but I do need, of course, to await the response of the Welsh Government on the report that was issued. But, in the meantime, on other initiatives, then I am absolutely ready and stand ready to work to improve those mechanisms and to enhance the way in which justice is delivered in Wales.
Amy Rees, you wanted to come in.
Thank you very much. If I may just add to the answer from an official perspective in terms of how we do work together on transformation, at the HMPPS level—so, that's prisons and probation—we're working on three things, effectively, with Welsh Government. One is management and recovery from the pandemic, as you would expect. The second, as the Lord Chancellor has mentioned, is a brand-new women's residential centre, which is both new in terms of a building but it's also new in terms of a policy concept. So, we really have to work together to make sure that's a meaningful part of the system. And then third, as the Lord Chancellor has mentioned, Wales has gone first in the unification of probation, so it's really important that we work together to make sure that that serves the community that we want to in terms of both risk prevention and, of course, helping to stop people reoffending.
Then, at the next level, in terms of what do we do bilaterally with the Welsh Government, there are two things. There are the blueprints that we have mentioned, and there is also just the day-to-day working together to ensure that we can get the best out of both systems and make sure our officials are really meshed together. And we meet almost on a weekly basis to try and do that. And then at the strategic, all-Wales criminal justice board level, which, I have to stress, as I've mentioned, is not just the two Governments, it's all the people, all the actors that make up the justice system, we have set ourselves three priorities: one to ensure the proper diversity of the system to make sure that all voices are heard in terms of black, Asian and minority ethnic people, disability, et cetera; one, critically, to support victims and witnesses in the system; and then to support the needs of offenders to stop them reoffending. So, as the Lord Chancellor has mentioned, that is primarily in terms of mental health needs and drug offenders' needs. So, at each level, at the HMPPS working level, the Welsh Government/national Government working level, and then across criminal justice, we have set ourselves priorities for what we do over the next 12 to 24 months.
Thank you. Back to you, Dai Lloyd.
Diolch yn fawr am hynna. I raddau helaeth, rydych chi wedi ateb fy nghwestiwn nesaf. I ganolbwyntio ar y byd sydd heb COVID nawr, yn sylfaenol, y strategaeth pum mlynedd rhwng y Weinyddiaeth Gyfiawnder a Llywodraeth Cymru i atal aildroseddu; mi wnaeth hwnnw gael ei gyhoeddi yn 2018—gweithio i sicrhau newid cadarnhaol i droseddwyr yng Nghymru, fel rydych chi wedi cyfeirio ato fe eisoes—allwch chi jest gadarnhau pa gynnydd sydd wedi bod yn y strategaeth honno, pa waith ychwanegol i'r atebion rydych chi wedi eu rhoi eisoes? Achos—. Rydych chi wedi sôn am gomisiwn Thomas eisoes, a bydd yna fwy o sôn am gomisiwn Thomas, yn amlwg, yn yr awr nesaf yma. Roedd yna ychydig bach o bryder o ochr comisiwn Thomas ynglŷn â diffyg trylwyredd yn y dull o reoli perfformiad yn y strategaeth bum mlynedd yma i atal aildroseddu. Felly, sut fuasech chi'n ymateb i'r math o gyhuddiad yna neu'r perig yna sy'n cael ei fynegi gan gomisiwn Thomas?
Thank you very much for that. To a great extent, you have answered my next question. To focus on the world beyond COVID, the five-year strategy between the Ministry of Justice and the Welsh Government to prevent reoffending that was published in 2018—seeking positive change for offenders in Wales, as you have already mentioned—could you just confirm what progress there has been on that strategy, what additional work in addition to the responses that you've already given? Because—. You mentioned the Thomas commission, of course, and there will be greater mention made of the Thomas commission in the next hour, but there was some concern expressed from the Thomas commission side that there was a lack of a rigorous approach in terms of managing the performance of that five-year strategy to prevent reoffending. So, how would you respond specifically to that kind of claim or that risk that was noted by the Thomas commission?
Thank you, Dr Lloyd. I will bring Amy in in a moment, but, to deal with the headlines, if you like, a partnership analyst has already been recruited in order to co-ordinate and to maximise the partnership working, without which the framework will not run. And key indicators were identified in order to monitor the outcomes that we were looking for in the priority areas, and the Integrated Offender Management Cymru board is reported to on a quarterly basis as a result. And I think, just reminding ourselves of the way in which this works, the day-to-day accountability for provision has to rest with the organisations that provide services. I think the key for us as the policymakers, as the leaders, if you like, is to make sure that those channels of information are absolutely open. And the agreed priorities, agreed between HMPPS and the Welsh Government and the agencies involved, are issues such as the challenging of domestic abuse perpetrators—really difficult work, but very important work—the focus upon the needs of black, Asian and minority ethnic groups, a focus on provision for ex-service personnel, ex-armed service personnel, and indeed a reduction in the number of women in the criminal justice system too. Those are just some of the priorities. Of course, there's a lot of emphasis on support for young adults and care leavers as well. And as we're about now just halfway through the programme—we've got another two years—I think it's vitally important that we make sure that that data is of the highest quality, and that the trends are being monitored, even through the constraints that COVID have placed upon us. But I wonder whether Amy might have any more information as to the operational data, and perhaps what it's telling us thus far.
Thank you very much. Yes, of course. So, the first thing I think I would say is that the fact that we have a strategy, a joint strategy, that looks five years hence that attempts to reduce reoffending is in itself a mark of how well we have worked together, and that work has continued despite the pandemic. As I've mentioned, we have the all-Wales criminal justice group. We have two groups that sit underneath that that are vital to this work; one has grown out as a result of the pandemic, and I've mentioned it earlier this morning, and that is a recovery steering group that works across the organisation, and of course that is vital when we talk about this, because we will need to manage the effects of the pandemic for a couple of years going forward. Then separately, as the Lord Chancellor has mentioned, there is the IOM—the Integrated Offender Management group—that reports into that all-Wales criminal justice board. That is chaired jointly by a senior operational leader from the probation service, but also a senior operational leader in the police, so that we can practically work together on how we reduce reoffending. We also relaunched the reducing reoffending and IOM strategy nationally across England and Wales about two months ago now, although I do have to stress IOM has always been very solid in Wales and has continued to operate.
We have the blueprints that focus particularly on young people and women, and we continue to work through that together. We also work with the youth justice board and YJB Cymru to work on how we can make sure that young people are properly dealt with in this system.
As you might appreciate, the data for reducing reoffending actually comes in a two-year time lag, so, in effect, the work that we do now, we only get to see whether or not we're effective in two or three years' time, but we are very confident in Wales that we have set out a really ambitious platform to reducing reoffending and, more than that, that work continues despite the pandemic and despite all the disruptions of COVID; we have continued to operate in exactly that way both in terms of governance but also practical support for offenders in Wales.
Thank you for that, Amy. Dai Lloyd.
Diolch yn fawr. Rwy'n ymwybodol o amser. Diddorol iawn. Atebion arbennig, ond fe symudwn ni ymlaen, Gadeirydd.
Thank you very much. I'm aware that time is against us. That was very interesting. Excellent answers, but we'll move on, Chair.
Okay. David Melding.
Diolch yn fawr, Gadeirydd, and good morning, Rob, but I think it's appropriate to start in that fashion. I have to say, I'm wearing my University of Wales tie, and in 1984 Lord Elwyn Jones granted me a degree, I think the last Welsh Lord Chancellor, anyway, and a great and illustrious predecessor I think you'd agree. It's slightly daunting when a colleague and a contemporary then holds such exalted office, but that's the only politeness you're getting to get from me, because I want to turn to family law, and the Thomas commission I think was sharpest in its comments on this—unsurprisingly, really, because this is where the joint jurisdiction probably is most challenging because Welsh Government has executive responsibilities for the protection and well-being of children but, obviously, private family law is not devolved, and nor is the criminal law that has a big impact in its consequences on families.
And Lord Thomas said that he thought that the leadership of family justice in Wales was inadequate. Now, that's a reflection on both Governments, and I think that's something that this committee is going to ponder as we draw up our legacy report for the sixth Senedd. So, I just wonder what your current evaluation of engagement is between, say, the family justice network for Wales and then, the Family Justice Board for England and Wales, and how they co-operate. Is that on hold at the moment because of COVID, or are there stronger intimations there of effective leadership?
Well, David, first of all, thank you very much for your kind comments and, indeed, I'm the second Lord Chancellor not just from Wales but from Llanelli in the last 50 years, which I think will tell you something about the potency of the water west of the Loughor, but we won't dwell on these geographical issues today, save to say that, of course, as a Welsh Lord Chancellor, not only do I believe that we have an institutional robustness here when it comes to interchange between the Governments, but also a personal deep political will and, of course, knowledge and experience about the legal system and the professions in Wales because of my 20 years of practice there, my long residency in Wales.
But coming away from the personal, I think the way we should look at this is actually to judge the family law system in Wales by results, and the results, even during COVID, are extremely impressive. When we think about the key performance indicator for public family law, that is the requirement under statute for cases to be held within 26 weeks, I'm looking at figures in Wales that are well ahead of the national average for England and Wales. So, nationally at the moment, only just under 30 per cent of cases are being held within that period, or heard within that period, but in Wales we are now achieving 46.5 per cent of cases being heard within 26 weeks.
Again, the average receipt to disposal time in Wales is well under the national average; the national average is 39.6 weeks and in Wales it's 31.4 weeks. And then, the pre-pandemic national performance, which I think is a very important measurement, was 39.4 per cent of cases being heard within 26 weeks with an average timeliness figure of 31.2 weeks, but in Wales there was a dramatic difference, a much better performance—61.3 per cent of cases being heard within 26 weeks with an average timeliness of 27.8 weeks.
Now, those figures I think are important and a testament to the work that's been done in public law, and in private law where the aim is to dispose of cases within 20 weeks, what we're seeing there is, roughly, Wales trending with the national average—slightly below. In the year to date, we are achieving 20.2 weeks, with 61 per cent of cases being heard within 20 weeks across the jurisdiction, and in Wales, slightly higher: 21.7 weeks, with 56 per cent of those being heard within 20 weeks. So, I just wanted to give you a flavour, really, as to where we are; quite naturally, an emphasis being placed upon public law cases, because in the main that is where, for example, child safeguarding issues will be particularly acute, but I think it's an important point to make that, actually, in Wales, the family law system is performing well. It's outperforming the national average in public law, as you know. In fact, it's the best performing part of the HMCTS system in England and Wales, and that's been achieved, I think, not just because of the hard work of judges and practitioners, but also because of the way in which we work closely with our partner agencies. So, that's going to be the Welsh Government.
There are initiatives, for example, such as the new family drug and alcohol court that is being set up in south-east Wales. That, I think, has been successful because the way in which people work together with the local family justice board, providing a bid with the support of not just the designated family judge for south-east Wales, but also HMCTS—that, I think, helps ensure real coalition, if you like, of support for that important work. I'm confident that the designated family judges are indeed working well with the family justice network, Children and Family Court Advisory and Support Service, and indeed the other operating parts of HMCTS. Every time I talk to officials in Wales about Wales, about family court performance and indeed other court performance, I'm consistently encouraged and impressed by the leadership that's being shown, by the example that is being shown, and by the fact that even in this crisis, Wales is leading the way, frankly, when it comes to the way in which the courts are being administered and the way in which justice is being provided.
Thank you for that answer. I suppose Lord Thomas was focusing a bit more on what courts do, rather than the speed of justice, although the speed of justice is a huge factor, and basically, how the law aligns with the current policy of Welsh Government, and their engagement and co-ordination between, in this case, the family justice network and then the family justice board for England and Wales. It's a bit confusing, I think, to anyone watching this, but these are obviously important bodies. The Welsh Government, in its evidence, said that they valued these networks but they always have to push for the meetings, and I just wonder is that a fair description and is that part of the lack of leadership, or do you feel that Lord Thomas perhaps wasn't entirely fair in that conclusion?
I'm always open to constructive criticism and observations and always keen to refine and improve communications. I think all of us, in our operations, can always strive to improve that, however good we think we might be. Having looked at this, I see the—. Having asked about this particular issue, I can see evidence of regular diarised meetings with Welsh Government agencies, quarterly local family justice board meetings with each designated family judge area, so all the parts of Wales, and of course those meetings involve not just CAFCASS but local authority children's services, social workers, HMCTS themselves, and the police as well as the DFJ. And then you've got the biannual family justice network meetings that are happening. There's been, I think, an additional emergency meeting of that network during the crisis, and again, you've got a wide range of representation there, not just the bodies I've mentioned, but also the Legal Aid Agency, the Children's Commissioner for Wales, the senior medical officer for the Welsh Government, and a real sense there, certainly from the personnel who I can see on it, of partnership. It's of course chaired by the deputy director general for health and social services from the Welsh Government. And there are regular CAFCASS and DFJ meetings, and of course, those operational meetings that are so important between CAFCASS and HMCTS.
And you know, David, whilst I think it's right for us as politicians to dwell upon the process and the governance and to make sure that it is as good as can be, I make no apology for making reference to performance, you know, that's what it's all about. No matter how well administered the system, if it's failing and not delivering as efficient justice as possible to the people who we serve, then something's gone wrong. Now, I'm not pretending that it's job done, it's not; we've still got those 26-week maximums in public law to address and there is pressure on the system—of that, there is no doubt. But I would prefer to be judged by the results and the outcomes and the direction of travel, which I believe is in the right direction in Wales. And frankly, these particular discussions should be the servant to that, rather than their master, and with the greatest deal of affection and respect to the authors of the report, and indeed, those who take part in these debates, sometimes, we're in danger of forgetting that.
I just want to touch on legal aid and advice. You've already made some remarks. Again, the Thomas commission was troubled by—. You've talked about the general issue here about the legal profession and their attitude to legal aid. But, anyway, the Thomas commission and the Welsh Government have said that they have, in effect, been providing more advice than perhaps they would have if there was a fuller legal aid system, if I can put it that way. This requires co-ordination and the Welsh Government has done it through the Citizens Advice bureaux and other such organisations. You've already—[Inaudible.]—litigant in person, and the whole scheme of legal aid and advice has become somewhat more dispersed, I suppose. And Lord Thomas says that if this was brought under the control of a single independent body, that might be helpful. But I just suspect there's a conflict in policy objectives here between the Welsh Government and the UK Government. I would like your reflections on that particular recommendation of the Thomas commission.
Yes. I'm going to await the Welsh Government's formal response to Thomas. I think that's not only the courteous, but the appropriate thing to do. I'll make this observation: I think no amount of change of governance actually gets to the nub of the matter. I don't think there's any lack of understanding here, either, certainly, from me, for obvious reasons, but also from my officials in the legal aid agency, as to the particular challenges, for example, in rural Wales. Advice deserts exist there, as they do in other parts of rural England. There are particular challenges that are well known and outlined regularly by practitioners and others in Wales as to what that means with regard to accessibility—geography being, of course, a huge issue and communications and the sheer time it can take to get to particular court centres, which is why I think it's important for us all to collectively look again and reimagine, if you like, what the provision of legal support should be for our citizens. And the old conventional shibboleth about access to justice and legal aid I don't think, actually, are enough any more. I think that is clear, and this crisis has brought it into more stark context.
And that's why I think the changes that we've made as a result of COVID with regard to remote technology, for example, are matters that I hope will be here to stay. I was hugely impressed when I was in the Cardiff civil justice centre to see, back in the summer when I was allowed to visit, evidence of a family case being given live in Cardiff by a party and then an expert from north Wales being able to give their evidence without having the concomitant travel and expense of doing that. Now, that's something that we've got to keep, and it's a small example of how, more widely, advice can be tendered in that way so that the concept of a desert starts to recede, and if you're living in Llandysul you can easily beam into advice from Cardiff or even further afield, if necessary, on a particular specialism that, with respect to practitioners, sometimes requires that level of expertise because the case is such a rare one. It's that sort of approach that I want to see far more of. Of course, I'm ready to talk to anybody and engage with anybody in the Welsh Government and wider society in Wales in order to achieve that. I think that ultimately no amount of central direction is actually going to nail the issue here. I think it's far better to learn from those on the ground, adapt systems accordingly and use the local knowledge that I know exists in Wales, whether it's, for example, the designated family judges that we've been talking about, or, indeed, the local law societies and local practitioners, who I think can be trusted to give us frank and accurate information.
Thank you. If I can move on now to Carwyn Jones.
Good morning, Lord Chancellor. It's been many years since we used to have our debates in the robing room at Swansea Crown Court. How times have changed. I want to pick up on one expression that you used earlier on, and that was the expression 'joint jurisdiction'. The 'joint jurisdiction', to my mind and to others, implies the joint sharing of responsibilities and powers over that jurisdiction. We have a situation at the moment—and you've rightly pointed out that there's a great deal of co-operation between officials when it comes to working between the Welsh Government and the UK Government—that does rely on goodwill. There's no legal basis for that co-operation. When you talk about a joint jurisdiction, then, are you talking about a jurisdiction where both Parliaments within that jurisdiction share responsibility and power over it?
I've been using the word 'joint', because I've been thinking about the practicalities of how to make the system work. When it comes to the overall constitutional governance, if you like, then we are a single jurisdiction, and I think that the lines are very clear. That means that the competent parliamentary body is Westminster. Of course, there are aspects of justice—very important aspects of justice—that were devolved, and that is why it's important for me to engage, first of all, with committees like yours, but more deeply, more fundamentally, for my officials to engage on a weekly, daily level, where necessary, with the practical implications of what that means in order to make sure that the jagged edges that we have come to be very familiar with—referred to in the Thomas commission—are smoothed out as much as possible.
But fundamentally, Carwyn, my view is that, whilst joint working clearly has to go on on a day-to-day basis, we are a single jurisdiction with all the immense strengths that gives to not just the people of Wales, but also everybody who works within the justice system of Wales. The England and Wales jurisdiction has an international reputation sans pareil, and it's something of which I'm deeply proud. I know you, and other former practitioners, are also proud of it, and it's something I think that we need to pause very carefully over before—however well intentioned the aim might be—seeking to potentially unpick what has been a world-beating and incredibly successful jurisdiction.
I'm not sure that I agree entirely with your analysis there. You're right to say that, for example, in the commercial world the jurisdiction is the go-to jurisdiction. That's true. But we have this odd scenario, don't we, where nowhere else in the common law world is there a parliament without jurisdiction to enforce its own laws, apart from the Welsh Parliament. The normal flow of events is that where a parliament is established the jurisdiction naturally follows. Northern Ireland is an example of that, in 1920. Here, we have this strange situation where we have two legislatures operating within the same jurisdiction. There is a law of England of Wales, but it doesn't apply across England and Wales. Increasingly there are differences between those two sets of laws. Why should Wales be different to Northern Ireland and to Scotland, where jurisdictions flow naturally? Wouldn't it help to get rid of those jagged edges if we simply said 'Well, Wales is its own jurisdiction'—whether that's a shared jurisdiction; I know that the former Lord Chief Justice has put forward such an idea—rather than keeping what seems to me a fiction of there being one jurisdiction with one set of laws, described, as both of you have done in the past few minutes, as 'national'? It's not national; there are two nations, not one.
I don't have a problem with difference. In fact, in many ways, difference is something to be celebrated. The current position, of course, is the product of the famous 'process not an event' after 1999, and the various iterations of devolution, most latterly encompassed by the latest legislation, which I think vastly improved and smoothed out some of the problems that I know you, both as First Minister and before that, highlighted on a number of occasions, quite rightly. Your experience of foot and mouth was one that certainly lived with me for a long time. That was something I certainly was anxious to deal with.
But in summary, where we've ended up is that Wales has had, if you like, a unique approach because the needs of the people of Wales need to be recognised in a unique way. There isn't an easy template here—a sort of cut-out template—that you could use that would necessarily mean that the outcome, in terms of governance for Wales, would be the same as that of Northern Ireland and Scotland. Carwyn, you and I are both students of history. We know the underlying context within which particularly the jurisdiction in Northern Ireland emerged, and I think you would readily agree that the situation and circumstances in Wales were somewhat different.
I know that a body of Welsh law is emerging—I can think of landlord and tenant, for example—which is different from English law, but I suppose apart from scale, nothing under the sun is new, and it's never been the case that there was an entire synthesis between English and Welsh law. There are plenty of examples, I think, I can give—market overt is the classic one—where the law always diverged as a result of the Act of Union. So, I don't think that of itself is new. I think scale is different—yes, I accept that—and that gives rise to questions about accessibility of Welsh law, which I'm particularly interested in and want to do my part to help with. I don't think that that is enough, in my view, to justify a wholesale change to the current arrangement.
I think that what we have together is much, much stronger, more resilient and, ultimately, more successful, I believe, than what would be, dare I say, the sort of rationalist approach that you want to take to this, which would end up in another jurisdiction that I would have to really to be persuaded about. Because at the end of it all, I want to know what the benefit is to the people of Wales. My priorities here are trying to make sure that our streets are safer, that people have confidence in the justice system, and that it's working as efficiently and as quickly as possible for people. Those are my priorities and, I think, however interesting these arguments are, frankly, they should take very much a second place to all the challenges that we've been discussing in this meeting.
One final question from me, then. I would argue that the law in Northern Ireland is less divergent from England than the law of Wales is from England at the moment, but there we are.
Let's look at the practical examples, then, of where we've arrived. Firstly, you and I will remember a time when there were many more courts in Wales. There were many more magistrates' courts and certainly more Crown Courts. They were cut down over the years, under different Governments of different parties, by somebody sitting in London, I believe, and saying, 'Well, look, that's 20 miles away from that court, then that's fine. We can get rid of one court, and everything can be transferred to the other.' That was the effect on Welsh courts.
We have a situation—and you've identified this, in fairness—where we cannot honestly say that we have proper access to justice, because people are priced out of justice. You will know judges and I will know judges who are saying that we see more and more people who are litigants in person—they can't afford legal representation. They're up against professional prosecutors in the CPS. Everything is slowed down as a result because, naturally, they have to have the procedure explained to them. You're right to point out that, at one time, when we were in practice, legal aid was perhaps overgenerous. I think that's probably true. But are we not in a situation now where many people, frankly, have been priced out of legal representation, even if you accept the courts and legal services Act of 2012, where, if you are prosecuted and you employ a solicitor and a barrister that you pay for yourself, you will not get compensated for the money that you've paid them? You only get compensated at legal aid rates, which, in practical terms, is well-nigh impossible. So, you'll end up financially out of pocket, even if you're acquitted in a criminal trial. I'm glad to hear you say that that's something you're going to address.
You mentioned, rightly, the advice deserts that we have in many parts of Wales—because the courts have gone, I would argue—but is that not an example of what happens when you have an overcentralised justice system that does not empathise with not just rural Wales, in fairness, but rural England as well? Perhaps it's time for a change of course.
Well, Carwyn, in the five minutes we've got left—. You've made the important concession that rural Cumbria or rural Cornwall would face many of the same challenges that, say, rural mid Wales does. And in that sense, therefore, I think that, actually, having a national leadership and an England and Wales leadership can actually be an advantage, because there can be a ready sharing of best practice, through the capacity that I have here with officials, in order to make sure that people in Wales can benefit from some of the learning elsewhere. That's what I think the benefit of a single jurisdiction can bring, and, frankly, what has been happening in Wales has already taught, I think, some of our friends this side of the border how to do it.
I think of the way in which Cardiff Crown Court adapted so quickly to COVID. It was the first court in the country to bring—in England and Wales—jury trials back. It's an example of how I trust people in Wales to take the initiative and to lead. I think that applying that across the board, accepting the fact that the civil servant in Whitehall does not always know best, is, frankly, the way in which to deal with the concerns that you rightly raise. I certainly believe that and I think my officials—and Amy Rees has been on the line today, resident in Wales, running not just Wales in terms of HMPPS, but also the probation system of England and Wales—it's an eloquent example of how we are, through our own actions, if you like, devolving out, making sure that the building in which I sit is not the sole repository either of power or knowledge, and that we are not just standing ready to learn, but we're actively learning from the experience of friends and colleagues on the ground.
It would be a foolish Lord Chancellor, whether it's me or my successors, to pretend that the world was as it was 100 years ago; it's not. I'm certainly going to be more of a success, I think, by not just engaging with you on the committee but by really making sure that those on the ground feel that they have their say and are being listened to. It's work in progress—I don't pretend it's by any means complete—but COVID, I think, has taught us a lot, not just about the benefits of having some central direction, but also the need to make sure that people on the ground are not just listened to but are followed and that their example is used to best effect, not just in Wales but across the jurisdiction.
One final point, then. Very quickly.
Very, very small. First of all, I do thank Robert for his appearance today before the committee; I think it's been important. But the difference between rural Cumbria and rural Cornwall on the one hand and rural Wales on the other is that we have the opportunity in Wales to create our own jurisdiction, control our own justice system, and resolve these problems ourselves.
I think, Lord Chancellor, that was Carwyn's—
He's not going to agree with that, but I just—
Lord Chancellor, that was Carwyn wanting the last word. But is there any final comment you would like to make, Lord Chancellor?
Can I just say thank you very much, diolch yn fawr, to the committee? It's my privilege and my pleasure to speak to you today. I'm extremely proud to be the Lord Chancellor of Great Britain as a very proud Welshman, as a proud Brit, sitting atop a system that, whilst it has its challenges—and COVID has accentuated them—I feel privileged and excited to be responsible for. I look forward to further engagement with your committee and, indeed, other Members of the Senedd in the months and years ahead.
Thank you, Lord Chancellor. I'm sure there are many things we would have wanted to ask, and we'll put certain matters that we weren't able to cover to you in writing. And, of course, we will send a transcript through. Thank you to you and your staff for attending this morning.
Diolch yn fawr. Hwyl.
Thank you very much. Goodbye.
Thank you. I think the witnesses have left now. Do we need to take a five-minute break here, Gareth?
We're taking a break until 10:45, Chair.
Okay, if we suspend proceedings, then, for 45 minutes, and we will restart at 10:45. There may be some matters we can deal with in private session. Thank you.
Gohiriwyd y cyfarfod rhwng 10:00 a 10:45.
The meeting adjourned between 10:00 and 10:45.
Welcome back to the reconvened meeting of the Legislation, Justice and Constitution Committee, and I welcome Nicholas Paines QC, the law commissioner, in respect of the Welsh Government having requested the Law Commission to develop proposals for the reform of devolved tribunals in Wales with a view to introducing a tribunals Bill for Wales in the sixth Senedd. The Law Commission has published a consultation paper with a set of provisional proposals in December 2020, and that consultation, of course, is open until 19 March. So, welcome to this committee, Nicholas Paines. If you don't mind, I'll refer to you as Nicholas from now on; we like to operate informally where we can. There are three distinct areas that I understand you will want to address, that is the devolved tribunal system, tribunal procedure and then supporting structures, and I understand that you'll do an introduction on each of those and then, obviously, Members may have questions they'd like to explore with you. So, over to you, thank you very much.
Thank you, Chairman. I'll try and be brief to leave plenty of time for Members' questions, but just to summarise the picture, this project concerns the half dozen or so devolved Welsh tribunals. Now, these are, in the main, successors to tribunals that existed across England and Wales, or even across the whole of the UK, set up on a regional basis. They were mainly set up at various points in time in the twentieth century. They were very often adjuncts of Government departments whose decisions they sat on appeal over.
In the United Kingdom as a whole, a review was conducted in the 1990s by the former Mr Justice Leggatt, who recommended that the tribunals be brought together into a single unified tribunal system in two tiers, a first tier and an appeal tier. That was carried into effect by a piece of legislation in 2007, but devolved Welsh tribunals were left out of that reorganisation and, as a result, they were, if you like, left behind, still governed by their existing original legislation, still conceived in the legislation as adjuncts of particular Government departments, in their case, Welsh Government departments, but with a rather piecemeal picture in terms of the legislation creating them, the powers in relation to them, the powers of appointment and dismissal, the rule-making powers and so forth. That picture has really remained.
An important landmark was the creation under the Wales Act 2017 of the post of president of Welsh Tribunals. The president, of course, is Sir Wyn Williams, and has jurisdiction over most, but not all, of the devolved Welsh tribunals. His jurisdiction relates to those that are administered by the Welsh Government through the Welsh Tribunals unit. The legislation gave him responsibility and some high-level duties, but wasn't very specific as to his role, but I have to say that my colleagues and I have been overwhelmed—[Inaudible.]—as we've learnt of the work that Sir Wyn has done over the three years of his tenure, acting as a representative of these disparate tribunals who previously had very little relationship with each other—[Inaudible.]—improvements for them in their working practices without amendment of legislation.
But it was in the wake of his appointment that the Welsh Government asked us to undertake this project, which we were delighted to do, and what we're considering in our consultation paper is legislative reform. Our proposals are what we label them, namely proposals. We're a very consultative and open-minded organisation, and we change our minds frequently in the light of what our stakeholders say about our proposals. But we've set out in the consultation paper a model that seems to us to be a good model for the future. It follows UK legislation and it follows recent developments in Scotland by proposing a single, unified tribunal structure, divided into what tend to be called chambers, exercised in the different jurisdictions that the different tribunals have. It brings into that structure a couple of the other devolved tribunals that aren't at present in it, mainly because they're organised on a regional rather than Welsh national basis, namely the tribunal that deals with appeals about council tax and rates, and the panels that deal with appeals against school exclusion decisions—the schools tribunals. At the same time, we have been seeing—[Inaudible.]
If I might just intervene, I think this has frozen on my side. I wonder if Carwyn Jones could take over.
It has not frozen on your side, Chair. Can you hear me?
It has frozen on Nicholas Paines's side, has it?
Yes. We can all see and hear you.
Okay. If we can just suspend for a moment while we try to resolve that.
Gohiriwyd y cyfarfod rhwng 10:52 ac 11:01.
The meeting adjourned between 10:52 and 11:01.
Sorry about that interruption, but I'm glad we're back together again. I think I was just saying how we were—.
Oh, hang on. We're now back in public session again. Okay. Nicholas Paines, please proceed. I think you were concluding the first part of your presentation.
Yes, I think I was saying about our proposal that the Welsh devolved tribunals be brought into a single structure, as has been done in the UK as a whole and for the devolved tribunals in Scotland. And that, at the same time, the opportunity is taken to uniformise and modernise the various underpinning legislative rules about appointments and discipline, about rule-making powers, and so forth.
And the next aspect I was going to mention of our proposals, I should call them, because they're provisional at the moment, in order to cement the undoubted independence of the Welsh tribunals, we suggest that a look be taken at the Welsh Tribunals unit, which is the unit within the Welsh Government that currently administers, and extremely efficiently, but consideration be given to giving it a more independent structure, either as a non-departmental ministry [correction: non-ministerial department] or as a separate executive agency of the Welsh Government.
That, in very quick outline, is what we're proposing, and as I was saying, we're open minded about the merits of what we're proposing and very keen to hear from consultees generally what everybody thinks of them.
Thank you for that. I'll go through the Members one at a time. Carwyn.
Thank you, Chair. For me, really, it's just—. Nicholas mentioned the fact that the commission is open minded about the proposals; so am I. So, what I'm keen to do is to explore the implications and, indeed, the advantages of replacing the existing system with a single, unified first-tier tribunal and, obviously, the proposal is on the table, but what are the advantages of the proposal, in your mind?
The main advantage we see, going forward, is flexibility. Under the UK model and the Scottish model, the individual divisions or chambers can be set up by secondary legislation business assigned to them by secondary legislation. If you have that flexibility, the Welsh Government and the Senedd could, for example, if they wished to create a new route of appeal from a Welsh Government decision, without going to the length of passing legislation, as had to be done for the Welsh Language Tribunal, a new chamber within the structure of the sort we're proposing could be created by secondary legislation. There would already be a template of appointments processes, discipline processes, a rule-making committee, and so forth. I think we see flexibility as the main advantage of unifying. One could simply modernise the existing legislation, leaving all the tribunals separate, and achieve a number of the advantages, but not this one of flexibility.
Thank you. Dai Lloyd, any questions? No. David? No. Thank you for that. Tribunal procedures, then.
Yes. At the moment, there are discrepancies in the rule-making powers for the existing tribunals. We're suggesting there should be a single process for setting the rules—a single body. We're proposing a new rules committee within the unified tribunals structure, if that's what comes out. The rules could be uniform where it was desirable, and different in order to accommodate differences in the jurisdictions. We're suggesting a greater judicial input into the rule-making process than exists at the moment, because we tend to think the judges who preside over the tribunals know the strong and weak points of their rules and are a good source of suggestions for how they could be improved, listening, as one hopes or is confident they do, to their user groups and the complaints of litigants and so forth.
Thank you. David.
Thanks, Chair. Obviously, the independence of the tribunals is key, and the appointments to tribunals and the lead appointment, or the judicial lead I think it's called, would be a concurrent power of the president of Welsh Tribunals and Welsh Ministers. So, is that more power than is currently with the president, or is this concurrent power giving Welsh Ministers more influence? And how does it compare to appointments in Scotland and in England at the moment, in their unified systems?
I haven't got the Scottish procedure off the top of my head at the moment, but the position for the existing Welsh tribunals under the current legislation is a very mixed one. Appointments are often made by the Lord Chancellor and the Lord Chief Justice, for example. In the case of the Welsh Language Tribunal, because of its more recent origin—more recent creation and devolved origin—the power is already with the Welsh Ministers. What we're proposing in terms of giving more appointment power to the Welsh Ministers would be an innovation, as would giving appointment powers to the president of Welsh Tribunals, but we think that the president is well placed as a judge, which the legislation expects him to be, to make worthwhile appointments. He will be close to the judicial leads who run the individual tribunals. In the case of those judicial leads, we thought that appointment should possibly not be left to the president alone but should require the concurrence of the Welsh Government through the Welsh Ministers [correction: but should require him to concur in an appointment made by the Welsh Government through the Welsh Ministers]. There are obviously independence issues in involving Ministers in the appointment of judges to tribunals, which, in many cases, sit on appeal over Government departments, but if it's a joint power, or a power of the one with the concurrence of the other, we don't see that as a problem, and we think that, for the judicial lead appointments, it should be more than simply the say-so of the president.
That's very helpful. The power of initiation, by the sound of it, would be with the president of Welsh Tribunals, and then, in the concurrent procedure, there is a natural check and balance and you need ministerial input. It is, as you said, a delicate matter given the function of tribunals. But is it fair to say that the power of initiative is clearly with the president?
It is a matter on which we hope to hear from consultees as to whether it should be. That was the model, I think, that we are proposing—that, if you like, the president draws up the list and sends it to the Welsh Ministers for their concurrence or otherwise. It could be structured differently, and, no doubt, even if that is the formal picture, there is likely to be behind-the-scenes consultation, one would imagine. That struck us as the best formal arrangement, but others are possible.
So, Ministers could quite reasonably say that the balance on the current tribunal lacks a certain stakeholder representation. Is that the sort of check and balance you might have at the ministerial level, so that the tribunal is able to function in a way that deliberates broadly and effectively?
Yes. I would imagine the procedure being handled in a civilised manner, of course, with give and take, and if the Welsh Ministers had a view on the suitability of candidates that the president proposed, they couldn't enforce their will on the president and he couldn't enforce his will on them. And, no doubt, sensible objections would be listened to and issues raised as to the diversity of the candidate pool or the like would no doubt be sensibly considered as well.
Can I ask a couple of questions that follow on but are not completely covered by the consultation? This is effectively an embryonic development of the Welsh judicial system, and it is very good to see the work that's going on. It deals with a number of issues that were of concern—appointments' independence and so on—that have been raised. One of the issues, though, that still remains is the access to justice element of it—that is, those who appear before it who want to seek administrative justice in one form or another. That doesn't form part of the consultation. In the past, there have been issues raised as to whether the adversarial approach, the inquisitorial approach or even a hybrid of them—. Are those matters that have been purposely kept from the consultation, or do you think that they are a matter more for Government or for the president of tribunals, or in some other way? Access to justice is obviously something that's very much on our minds. We've just had a session with the Lord Chancellor about this, and I'm just wondering what your thoughts are there.
Well, we haven't really involved ourselves with the question of how the tribunals approach their case load, or whether they're sufficiently inquisitorial or the like. I think that's a whole separate topic. We haven't as yet received anything by way of complaint about the way in which the existing tribunals conduct their work. I think it would be for the president of Welsh Tribunals in the first instance to propose structural changes or changes of approach if he—or 'she' in the future—thought them desirable. But we haven't any evidence of a problem, and we're very much concerning ourselves with the structure at the moment.
Okay, thank you very much for that. On the issue of supporting structures, I think you wanted to add some further comments there. Was there anything further you wished to add, Nicholas?
I think I should say that, as far as we can see, the Welsh Government, through the Welsh Tribunals unit and Rhian Davies Rees who runs it, are doing an excellent job in running these tribunals. There's no suggestion at all that their independence, day to day, is being compromised at all. We just thought that to send the appropriate signals, if nothing else, the unit, given that it is running a judicial activity, should be structurally slightly more distanced from the Welsh Government than it is at the moment, as simply a division of Government. And we've looked at two existing models—the executive agency model and the non-departmental ministry model [correction: non-ministerial department model]—and we've put them both before consultees and asked for people's views.
Okay. Thank you for that. Dai Lloyd.
Diolch, Cadeirydd. Diolch am olrhain y cyd-destun a hefyd y gwaith sy'n mynd rhagddo, Nicholas. Allaf i jest ofyn, ar gefn beth rydych chi newydd ddweud, a allwch chi olrhain goblygiadau'r broses o ddiwygio rôl llywydd Tribiwnlysoedd Cymru ac uned Tribiwnlysoedd Cymru at ddibenion sicrhau annibyniaeth tribiwnlysoedd Cymru, sydd yn hanfodol bwysig, fel dŷch chi wedi cydnabod, a'i gwneud hi'n sicr ac yn gadarn nad yw unrhyw broses o ddiwygio, ar hyd y lle lle rydych chi wedi olrhain, yn mynd i beryglu unrhyw annibyniaeth?
Thank you, Chair. Thank you for outlining the context and the work that is ongoing, Nicholas. May I just ask, following what you have just said, whether you could outline the implications of the process of reforming the role of the president of Welsh Tribunals and the Welsh Tribunals unit as regards ensuring the independence of the Welsh tribunals, which is vitally important, as you have acknowledged, and ensuring that any process of reform, as you have outlined, isn't going to endanger independence?
Forgive me for interrupting, but I'm afraid the gremlins have been at work. I thought I had set this up to receive the translation, and, I'm afraid, I only heard the original, not the interpretation.
Gareth, do you want to give some guidance?
Do you have the interpretation switched on? If you go to the three buttons at the bottom of the screen, click on those.
And, then, click on 'English'.
Well, I hit 'language interpretation' and, then, 'English' is ticked. Should I mute 'original audio'?
You could try that, yes. Shall we undertake a quick translation check? [Inaudible.]
Nicholas, did that come through okay?
I'm very sorry, but no. I didn't understand why not.
Chair, I could exercise my limited knowledge of English, if that would be helpful?
Let's proceed. Unfortunately, one of the gremlins has hit us. So, Dai Lloyd.
Following on from what you said about structures, and, obviously, the independence of the Welsh tribunals is important, do you see any implications in the change in the structures that you outline in any way causing any difficulty for the independence of the Welsh tribunals?
No. I think either of our proposals would make that independence more formalised by giving the body that administers the tribunals a greater degree of separation from the Welsh Government. Of course, they already have their judicial president, Sir Wyn, who would, no doubt, leap to the defence of their independence, if the issue were to come up, but it hasn't in the period we have been reviewing. I think our proposals could only help to promote the clarity of the independence.
Great, thank you for that. On the back of that, with similar sort of questioning, because we're big into scrutiny here in the Senedd, and not just Welsh Government scrutiny, but parliamentary general scrutiny of what happens, because I'm sure it didn't hit most Members of the Senedd until recently that there was one aspect of justice that was already devolved to Wales, and had been for some time, and that was the administrative justice via the tribunals. So, it may have come as a shock for those saying, 'We've got to have some justice devolved', whereas, in fact, we've already had some justice devolved for some time. So, could you just expand on how your proposals, either way, could aid improved Senedd scrutiny?
I think the president already makes an annual report to the Senedd. Our proposals would involve expanding the president's role so that he would have more to report on in the future. He would, no doubt, report on his role in appointments if one is conferred on him and so on and so forth. So, there would be greater reporting to the Senedd under our proposals.
Great. And the last question from me, Chair, is: are there any financial implications either way to these proposals that should garner any, I don't know, disquiet?
There would be some set-up costs in establishing the existing Welsh Tribunals unit as either a non-executive agency or a non-departmental ministry—non-ministerial department, I should say. We haven't attempted to calculate those, estimate those, as yet. We think they would be relatively modest.
I should mention one aspect of our proposals that would have an ongoing cost, and that is moving the jurisdiction over schools exclusions from the current local panels, staffed by volunteers, to what will in the future be the educational tribunal, currently the Special Educational Needs Tribunal for Wales, but already to be renamed under a Senedd Act. There would be a cost there, which we have estimated, as best we can, at £80,000 a year, on the basis of estimates of the number of exclusions cases that they would hear. That cost is inevitable if you replace volunteers by paid judicial members, but we, provisionally at any rate, see merit in incorporating jurisdiction over schools exclusions, which are, obviously, a serious matter for the pupil involved, with the jurisdiction and the expertise that SENTW already has over special educational needs, which is obviously an allied area to reasons for exclusion. So, if Wales regards that as an improvement, there will be a cost attached, and we can't hide from that.
Okay. Thank you.
Thank you. Carwyn Jones.
Yes. Thank you, Chair. Just to come back onto a point that Nicholas mentioned earlier on, and that is the need to ensure that proceedings in the tribunals are sufficiently inquisitorial, as he put it, there has been a drift in recent years—and the coroners' courts are the prime culprits here—of moving away from what is meant to be an inquisitorial system increasingly towards an accusatorial system. The coroners enjoy such incredible discretion in terms of how they run their affairs, we have seen in recent years that some of them have begun to look like trial courts. Now, given the experience of the coroners' courts, is there any concern then in the Welsh tribunals of that move away from their inquisitorial nature—you know, you raised the issue as something that needed to be at least observed and monitored?
Well, as I've said, we have haven't really looked into how the tribunals approach their jurisdiction. I know from my own past experience, sitting on social security cases in the upper tribunal in the UK, that there is an evolved body of case law about the need for those tribunals to be inquisitorial, given that the welfare claimant parties are, invariably, unrepresented.
Obviously, the sort of issues that can come before coroners are no doubt the sort of issues regarding counsellor behaviour that come before the adjudication panel, which is one of the devolved tribunals, and can become hard-fought contests, with lawyers on both sides. But, at the moment, we're leaving it to the good sense of the judiciary to handle those cases appropriately. I don't know that our moving into that aspect of investigation would really be appropriate.
But—sorry, Chair—doesn't that create inconsistency? They're either inquisitorial or they're accusatorial. They can't be, to my mind, a blend of both. It's true to say that, where there are lawyers involved, perhaps there might be a difference in the way that a particular case is approached, but, certainly, having been involved in some of these matters many years ago now, it's certainly possible to have an inquisitorial approach and have lawyers involved as well. Is there a danger that allowing too much discretion might lead to an inconsistency in the way that different cases are approached and ultimately decided, do you think?
I can only go on the basis of my own experience sitting on these types of cases, and one tempers one's approach to the facts of the case and how the parties are represented or otherwise. In social security work, as I've said, it was fairly rare for the claimant to have representation, even at the tribunal level, though there were some extremely good representatives that went on, from time to time; one was enormously grateful to them. If a party has a representative, it relieves the tribunal of some of the work that they otherwise need to do in ensuring that every point that could be taken on behalf of the claimant is considered by the tribunal, whether or not an unrepresented claimant has raised it. But I would like to think that the judges who sit in these types of cases day to day have developed the right sort of approach or blend of approaches, and nobody has suggested to us that there's anything much to complain about in the way that the very impressive lead judges whom we have met, and other judicial personnel at these tribunals, handle their cases.
Okay, thank you for that. Any further comments or questions from Members? Well, Nicholas Paines, thank you very much for giving us this briefing in this session, and, obviously, we will look forward to seeing the conclusion of the consultation and what comes from that. I think there is certainly a legacy issue for us to consider in respect of the access to that, which is maybe something we can consider later, but thank you very much for attending, we very much appreciate it. And no doubt, perhaps in the next Senedd, there'll be an opportunity to explore these still further when your conclusions are post consultation. Thank you very much.
Well, thank you, Chairman. It's been a great privilege, for which I'm grateful, and we await with interest all the consultation responses from every source. As you mentioned at the outset, our consultation is open until 19 March. Our consultation paper is on our website and we welcome as many views as possible. So, thank you for this opportunity to talk about it.
Thank you. Members now, whilst Nicholas Paines QC leaves, we'll move on with our agenda, if everyone is ready. Thank you, Nicholas Paines, and your officials.
If we can move on to item 4 of the agenda, we're on to the Plant Health (Amendment) (Wales) (EU Exit) Regulations 2021. These are regulations that make amendments to existing regulations to allow movements of qualifying goods into Great Britain and an EU plant passport. Once in Great Britain, an EU plant passport can continue to accompany the qualifying goods. I don't think there are any reporting points, are there, Gareth? There aren't any. Are there any comments or observations from Members? I don't see any.
So, we move on, then, to the next item, 4.2: the Family Absence for Members of Local Authorities (Wales) (Amendment) Regulations 2021. These regulations amend the Family Absence for Members of Local Authorities (Wales) Regulations 2013 to increase a doctor's absence entitlement for members of a local authority from two weeks to 26 weeks. This will result in the same periods of maternity absence and a doctor's absence being available. Gareth, any reporting points? Any comments or observations from Members? I don't see any.
We move on to item 5 of the agenda, then. We move on to the Water Resources (Control of Agricultural Pollution) (Wales) Regulations 2021. Members have the report, regulations, explanatory memorandum and, of course, the written statement of 27 January 2021. These regulations make provision concerning the protection of waters against pollution by nitrates from agricultural sources. Members may be aware that a motion to annul these regulations has been tabled by Senedd Member Llyr Gruffydd, and that there is a debate scheduled for 3 March. There has been a merits point identified. Gareth.
Diolch. Yes, there is one merits point, which notes the potential timings involved when a person receives a notice from the Natural Resources Body for Wales, and that person then appeals to the Welsh Ministers against the notice. In brief, the regulations do not rule out the possibility that a person appeals against a notice, awaits for the appeal decision before doing anything, loses the appeal, and then is required to comply with the notice on the same day as the appeal decision is made. Now, while the regulations do not say that will happen, also the regulations do not rule out that happening.
Okay. We note that point. Obviously, we're aware of the fact that there will be a debate on this issue on 3 March. David Melding.
I just wonder—that point obviously stands out quite dramatically—whether there are any human rights implications from this, because it seems to me, on the face of it, unreasonable for any action to be taken immediately in that manner without the actual logistics and planning that could be involved. On smaller issues, which, perhaps, wouldn't be the subject of appeal anyway, it wouldn't be so material, but it is a strange thing, isn't it, to have there, lingering in the regs, as not something that's resolved and tidied up. I can't envisage, on larger orders anyway that are required in terms of sorting out agricultural pollution, that they could take action on that day.
There is a power for the Ministers to extend the deadline for complying with the notice, but it's only a discretionary power; there's no duty to extend it. As you said, the key word there is 'reasonable', and also any interference with anyone's human rights would have to be justifiable, based on the circumstances. The draft report does not ask the Government for a response, but we can change that if Members wish, and get the Government's views.
Yes, we could ask for that.
I think that would be helpful.
Any other comments or observations? No. Thank you for that; that's very helpful.
We move on to item 5.2, which is the M4 Motorway (Junction 28 (Tredegar Park) to Junction 24 (Coldra)) (50 mph Speed Limit) Regulations 2021—an area I'm sure we all know very well. These regulations impose a maximum speed limit of 50 mph, in place of the national speed limit, on the lengths of the M4 motorway specified in the Schedule to these regulations. Gareth—reporting points.
Yes, just one merits point to note: the explanatory memorandum is in English only, and that's something the committee has highlighted previously.
Okay. We note that. Any other comments or observations? Okay.
We move on, then, to item 5.3, the Non-Domestic Rating (Unoccupied Property) (Wales) (Amendment) Regulations 2021. These regulations amend the 2008 regulations on the same subject, such that the temporary period of occupancy required before receiving a subsequent period of empty property rates relief is extended from six weeks to 26 weeks. Over to you, Gareth.
Just one merits point, which notes that these regulations commence in April 2022, which is intended to give rate payers, local authorities and other stakeholders time to prepare for the changes.
Okay, thank you for that. Any other comments or observations? I don't see any.
So, we move on to the Animal Welfare (Licensing of Activities Involving Animals) (Wales) Regulations 2021. We have the written statement of 3 February 2021 and the various papers. These regulations provide for the licensing of persons involved in selling animals as pets in Wales, and make it an offence for commercial third parties to sell puppies and kittens under six months. The Welsh Government's written statement of 3 February 2021 notes that a new version of these regulations is to be laid in order to address an error. These new regulations have not yet been laid, and therefore these regulations have not yet been withdrawn. I think there have been some technical and merits points identified, Gareth.
Yes, as regards the technical point, it notes an incorrect cross-reference in the regulations, and the Government response, which was received on Friday, accepts the error, and given that the Welsh Government had already said that it was withdrawing these regulations and laying new ones, then this error picked up will be corrected in the new regulations. Despite needing to lay new regulations, the Government still intends that the changes will be in force by September this year, and that's reflected in the second merits point.
Okay, thank you for that. Any other comments or observations? Thank you.
So, we now move on to item 6. We move on to the Official Feed and Food Controls (Miscellaneous Amendments) (Wales) Regulations 2020. We considered these regulations at our meeting on 18 January and we laid our report on that date. We've now received, obviously, the Welsh Government response, which has been received, so that's just there for noting. So, are there any comments or observations on that? No, we note that then.
We move on to item 7, on to the Candidate Election Expenses (Senedd Elections) Code of Practice 2021. Again, we considered this code at our meeting on 8 February, we laid our report on that date, and we've now had the Government response. Any comments or observations? No.
In that case, we move on to item 8, which is papers to note. We have the letter from the Minister for Environment, Energy and Rural Affairs on the Organics (Amendment) Regulations 2021. The letter is dated 23 January 2021. So, we're invited to note this letter from the Minister, which states that she has given her consent to the Secretary of State to make the Organics (Amendment) Regulations 2021 in relation to Wales. Are there any comments or observations on that?
In which case, we can move on to item 8.2, a letter from the Minister for Housing and Local Government to the Llywydd—Senedd business during the pre-election period, and, again, we're invited to note the letter from the Minister, which provides information about how the Welsh Government envisages that Senedd business should proceed during the pre-election period. Members will note that the Minister has referred to this committee and the role that it may play during the pre-election period. Perhaps if there's anything on that we defer that to private session. Thank you for that.
Item 8.3, a letter from the Counsel General with regard to amendments to the UK Trade Bill. We've had this letter of 28 January 2021, and we're invited to note the letter from the Counsel General, which states that an amendment has been made to the UK Trade Bill that makes provision with regard to devolved matters. Members will note that the Counsel General considers there to be insufficient time to lay a supplementary memorandum and to schedule a debate in the Senedd in a way that can be taken into account in the UK parliamentary process. If there are any issues on that, perhaps we can discuss that in private session.
We move on to the Welsh Government report on the implementation of Law Commission proposals. We have a letter from the Minister of 28 January 2021, and there is the written statement of 13 February 2021, and we are invited to note the Welsh Government's report on the implementation of the Law Commission's proposals. Any comments or observations on that?
If not, then, moving on to item 8.5, correspondence with the Secretary of State for Wales on the Sewel convention, and, again, we're invited to note the letter from the Secretary of State for Wales. This responds to a number of questions that we raised in committee in relation to the application of the Sewel convention, particularly with regard to the United Kingdom Internal Market Bill. We'll discuss that in private session. Is that okay? I see it is.
bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).
that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).
Cynigiwyd y cynnig.
So, we move on to item 9. We're ready to move into private session. So, in accordance with Standing Order 17.42(iv), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do the Members agree that we move into private session? I see we do, so we now go into private session.
Derbyniwyd y cynnig.
Daeth rhan gyhoeddus y cyfarfod i ben am 11:39.
The public part of the meeting ended at 11:39.