Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

01/11/2021

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Alun Davies AS
Huw Irranca-Davies AS Cadeirydd y Pwyllgor
Committee Chair
Peter Fox AS
Rhys ab Owen AS

Y rhai eraill a oedd yn bresennol

Others in Attendance

Rhian Davies-Rees Pennaeth Uned Tribiwnlysoedd Cymru
Head of the Welsh Tribunals Unit
Syr Wyn Williams Llywydd Tribiwnlysoedd Cymru
President of Welsh Tribunals

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Aled Evans Cynghorydd Cyfreithiol
Legal Adviser
Lucy Valsamidis Ymchwilydd
Researcher
Nia Moss Ymchwilydd
Researcher
P Gareth Williams Clerc
Clerk
Sara Moran Ymchwilydd
Researcher
Sarah Sargent Ail Glerc
Second Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Cyfarfu’r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 13:30.

The committee met by video-conference.

The meeting began at 13:30. 

1. Cyflwyniad, ymddiheuriadau a dirprwyon
1. Introductions, apologies and substitutions

Prynhawn da, bawb. Good afternoon, everybody. Croeso i chi i gyd. Welcome this afternoon to this virtual meeting of the Legislation, Justice and Constitution Committee. As normal, the meeting is being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual.

Now, aside from the usual procedural adaptations for conducting these proceedings virtually, all other Standing Order requirements remain in place. I'm pleased to say we haven't had any apologies for today's meeting. We have a full turnout of our committee team, as always—thank you for that. 

So, just some brief housekeeping arrangements. As per normal, if we could make sure that all our mobile devices are switched to silent throughout these proceedings. We are operating through the mediums of the Welsh and English languages, and we have interpretation available throughout. Just to remind us all, the sound operator is controlling our microphones, so we don't need to mute and unmute ourselves.

2. Sesiwn dystiolaeth gyda Llywydd Tribiwnlysoedd Cymru—Trydydd Adroddiad Blynyddol
2. Evidence session with the President of Welsh Tribunals—Third Annual Report

Now, we've got quite a busy session ahead of us, both in public and private today, and in our public session we begin with an evidence session with the president of Welsh Tribunals. We do this on the back of the Welsh tribunals' third annual report as well. We're delighted to have with us today the president of Welsh Tribunals, Sir Wyn Williams, and the head of the Welsh Tribunals unit, Rhian Davies Rees. Welcome to you, president of Welsh Tribunals, and to Rhian as well. We'll go straight into questions if you're happy with that.

Yes, I'm happy. Can I just explain that I hope and anticipate that I will be able to answer most of the questions fully, but if there are factual issues in particular, it may be that I will ask Rhian to provide that factual detail? But otherwise, I will answer the questions as fully as I can. 

Thank you, Sir Wyn. We appreciate that.

Let me begin, just by way of opening, by asking you to reflect a little on your tenure as the first president of Welsh Tribunals. Looking back on it—not just the last year, but the whole scope of it—how have things changed? What has your experience been like?

I think the first thing that I'd say is that I needed to convince myself that there was a need for the role, because being the first person to be appointed to the post didn't necessarily mean that the appointment was indeed a necessary one. So, I've reflected upon whether or not this post was and still is necessary, and on that issue, I have no doubt that it is.

There are two principal reasons for me saying that. The first is that although each of the judicial leads that lead the individual tribunals are highly competent and very successful leaders of each tribunal, it was impossible for them to convey collectively the needs of the tribunals to Welsh Government. They needed a person to do that for them, and that's an important part of the president's role. And secondly, there is always a need, in my opinion, in judicial structures, to have an out-facing person who can gain from the experience of other jurisdictions, and so an equally important role of the president is to involve himself or herself in matters relating to England, Scotland and Northern Ireland, to have a clear understanding of how we can improve things by learning from others.

So, only one person, I think, can do that, holding the role of president, albeit that he or she then cascades what he learns to the judicial leads. I very quickly satisfied myself that there was a need for a presidency, and then I suppose my reflections start to consider what, if anything, has been achieved in the three or four years that I've been most involved.

I think there have been achievements. There are simple, practical things like ensuring that all our judicial holders were signed up for the e-judiciary system, allowing themselves to behave like judges, in other words, not persons using their own IT to try and get by, so to speak. Having dedicated legal support, designated lawyers—Welsh Government lawyers, yes, but actually designated to assist the work of the tribunal—has been hugely influential in helping us to make good decisions about problems that inevitably arise from time to time.

Having the Welsh Tribunals unit become more and more self-contained has been, in my opinion, extremely important. You may hear me expound the virtues of judicial independence more than once during the course of this session, but it's very, very important that the Welsh Tribunals unit is seen as an independent support unit to the tribunals. I've got no doubt that we'll get on to some of the Law Commission recommendations in due course, but seeing the Welsh Tribunals unit under real leadership, from being more or less indistinguishable from a unit of Welsh Government into something much more independent, has been very important. Unless you want me to take up far too much time on my reflections, I think that's a reasonable start in answering your question.   

13:35

That's a really helpful initial set of reflections already. We'll return to some of those areas that you've touched on in a few moments. I wonder if I could just ask you: you've accepted the extension to your term of appointment, what's the rationale behind that? But also, what is happening now in terms of plans for a successor and progress towards that? It would be helpful if you could tell us what the current state of affairs is. 

So far as accepting an extension to my appointment, from a purely personal point of view, that was easy—I really enjoy doing this job, so I had no problem in accepting an extension. As for the rationale behind why I was asked whether I would be prepared to do it, I suppose, strictly, you should ask the Lord Chief Justice and the First Minister, since it was their decision. But I suspect that the theme running through it is that they wanted me to remain in place while the Law Commission was formulating its proposals and, hopefully, delivering them to the First Minister, so that before I depart, I can help the start of the process of implementing whatever it is that it has decided to implement. I would guess that's very much behind it.

As far as the second part of your question is concerned, on plans for a successor, I have in my annual reports made no secret of the fact that I consider it very important that Welsh Ministers have that very firmly in mind, because one can't appoint a successor in the course of a couple of weeks. There needs to be some considerable thinking behind it. As you may know, first of all, my successor will be appointed by the Lord Chief Justice, because that's the effect of the Wales Act 2017. And there are two routes to appointment: one is the route by which I was appointed, namely that a serving or a retired High Court judge is, in effect, selected by the Lord Chief after expressions of interest; the second is through an open Judicial Appointments Commission appointments process, where the post is advertised and people make their applications. And obviously, it's a matter for the Lord Chief, not me, as to which process he adopts when it's decided that it's time for Wyn Williams to stand down, or, for that matter, Wyn Williams decides it's time for him to stand down.

Anyway, that's the process, and, as I say, I think the sooner that the First Minister, the Ministers, et cetera, address their mind to how they wish to proceed, the better, not just because I have a finite existence doing this job, but because it probably then means that the best possible planning will be made.

13:40

You've given some really useful pointers there, even though you've laid out that many of these decisions are outwith your control. But you've set a clear direction there, which is really helpful. Before we turn to a couple of issues around access to justice, I wonder if I could ask you, in the term remaining, if there is anything you want to share with us on your key priorities.

Undoubtedly, being as helpful as I possibly can, in two respects: first, aiming to solve how the tribunals should operate post pandemic, because the reality is that I cannot see us returning completely to the ways of working that prevailed before the pandemic; and secondly, doing as much as I can to assist in the process of implementing whatever is decided to implement from the Law Commission's report. I see those as being my main priorities for the remainder of my term.

Thank you. That's really helpful. Let me just turn to a couple of final questions before I move on to colleagues, which are to do with access to justice and particularly that issue of the last 12 months or 18 months with the pandemic. We know that there has been quite a switch in terms of the way in which tribunal hearings are heard—the move towards remote hearings and so on—and there has been a lot of discussion over that as well. Let me pick up one in particular there—. Let me ask you, first of all, how you think, overall, that has worked, that has been managed. During the impact of the pandemic, how has the Welsh tribunal system coped?

First of all, let me deal with that question from an administrative point of view. The Welsh Tribunals unit responded quickly and very efficiently to the first lockdown. It now seems a very long time ago, but in March 2020 we were suddenly confronted with the fact that no face-to-face hearings could take place. And in respect of our two biggest tribunals, that is the mental health review tribunal and what is now the education tribunal, that could have had extremely serious consequences, but, in fact, throughout the period of the pandemic, both those tribunals have operated remotely, from an administrative point of view, extremely successfully.

I know there are other issues, and I'm not seeking to shirk them, but from an administrative point of view, they've operated very successfully. And I stress the importance of that, because it means that all the cases that have been brought forward during this period have actually been dealt with, and that shouldn't be lost sight of, because one hears so much about interminable delays in the justice system generally. In the Welsh tribunals, those cases that have been needed to be heard have been heard, and that is no small point to make.

As to remote workings generally, they're obviously far more suited to some kinds of work and some kinds of tribunals than others, and nobody that I know who has looked into this thinks differently. There is a clear difficulty, without doubt, in having remote hearings, of whatever kind, in respect of some mental health review tribunal hearings. But the plain fact is that the alternative was to have no hearings, because people wouldn't be allowed into hospital. So, the reality is that we have to have them, and the debate, in my opinion, is not about whether there has been a need for remote hearings—that is unanswerable—the debate is around what type of remote hearing.

I would be wrong if I did not acknowledge that some types of remote hearings, like telephone hearings, will suit some vulnerable people and will be anathema to others. Video platform hearings will suit some kinds of vulnerable people and be anathema to others; it is extremely difficult to judge which is the most appropriate hearing in a particular case. And it's sometimes forgotten, I think, that each individual hearing is a judicial hearing at which the judicial panel hearing the case really has to make a judgment about what's in the best interests of justice in a particular case. And in my view, at least, that should be the guiding principle in determining what kind of remote hearings are best suited to particular cases.

I can't pretend that this has all been without difficulty; clearly, for some people, this has been extremely difficult. But I suppose the bottom line is that we have kept the system moving, and that is very important.

13:45

Thank you, Sir Wyn, that's a really, I think, frank and honest appraisal of the administrative necessities balanced against the access to justice. I think my colleague Peter Fox will pick this up further in a moment. I just have one further question in this opening section. It's to do with, over the last year or so, 18 months, during the pandemic, your reflections on the changes in the volume of work carried out by the tribunals. We're looking in particular, for example, at the special educational needs tribunal and the mental health review tribunal and the reduction in cases. What can you tell us about that?

There is no doubt that, in both those tribunals, there was a reasonably substantial reduction in the workload. So far as the mental health review tribunal is concerned, I think, in significant part at least, that is probably explained by the fact that those community cases—that is, people in the community—where there was no pressing need for a decision probably decided that they wouldn't bring them forward in the pandemic, especially given that some of them would not have enjoyed a remote hearing and that face-to-face hearings, even in the community, were extremely difficult. There isn't as straightforward an answer in respect of the educational tribunal, because, on the face of it, you would've thought that the educational difficulties that lead to a tribunal hearing might exist regardless of the pandemic. So, I can't give you a straight answer, I'm sorry, about that.

What I can tell you, however, is that the pandemic, it seems, must have had an impact on this, because the figures for the hearings in SENTW in 2020-21 were 116, Rhian tells me. Already for the period April to September this year, it's 89 and we're projecting that, over the whole year, it'll be 178, which will be very comparable to the year immediately before the pandemic. So, for whatever reason—and I'm sorry I can't give you the reason—it does seem that the pandemic did have a significant impact on the work of that tribunal. The other tribunal in which the number of cases is usually around 100 is the residential property tribunal, and actually, the prediction is that, in that tribunal, the number of cases will be very similar to the last year. But, of course, in that tribunal, there was hardly any change in numbers anyway. So, the numbers appear to have been reasonably static throughout the whole period in that tribunal.

It would be fascinating, if there's anything else that comes to light on the reasons behind that, albeit, as you say, in a couple of the areas, it's picking back up again, but—

One of the things that we do to keep tabs on all these things is that we have quarterly judicial meetings, and I'm due to have a quarterly judicial needs meeting, on 1 December I think it is, so that I will be asking the president of SENTW for her most up-to-date view on this, and I'm sorry it's coming three weeks after this session. But, certainly, if it's informative in any way, I'd be very happy to write to you and give you a further explanation. 

13:50

We'd really appreciate that, thank you. Thank you, Sir Wyn.

I'm going to pass now on to my colleague Peter Fox, who’s going to dive a bit deeper into some of the areas you were touching.

Thank you, Huw, and good afternoon, Sir Wyn. It's lovely to meet you, albeit virtually, and that's pertinent as we’re talking about that side of things at the moment. Forgive me if you’ve covered many, perhaps, of the points we want to go through, but perhaps we need to delve deeper as well, because we're on a learning exercise in so many ways, and this issue of remote access is so important to us all, and nothing more important than through the various tribunal processes. You mentioned earlier about the cloud video platform and, I just wondered, in the light of the Legal Education Foundation project’s findings that about 32 per cent of respondents reported that it was so difficult for them to communicate with other parties in the video conferencing—video hearing, rather—I wondered if you’ve got any more reflections you wanted to have on that or some deeper perspectives around it.

Yes. Well, I think the best way of trying to give you more detail is to look at it tribunal by tribunal. If I start with SENTW, throughout the whole period, the president was reporting to me that most parents who participated in the process actually welcomed the video platform, because they were able to discuss the welfare of their children in their own kitchen, so to speak. They felt more relaxed, they felt able to put forward their point of view more determinedly, really, than being confronted by a panel sitting in a room. Now, SENTW quite often sits in an informal kind of room in any event, but, nonetheless, there’s no taking away the fact that it looks a bit like a courtroom once you’re all there together, even if it actually is a hotel room sort of thing. So, that informality, so the president told me, was welcomed by many of the parents who used that tribunal. I would expect that SENTW will continue to use the platform quite substantially in its work.

The residential property tribunal, in a way, also lends itself to video platform in the sense that, quite often, the people participating are surveyors or landlords or people who are reasonably knowledgeable about the dispute that has taken them to the tribunal in the first place. And if they are professional people of that kind, they may be used to remote hearings, or become quickly used to them, because of their every-day dealings. So, again, there wasn’t a difficulty that I was aware of in the residential property tribunal.

Our three smaller tribunals, if I can call them that—that’s the agricultural lands tribunal, the Welsh language tribunal and the adjudication panel—again seem to be able to cope with remote hearings. Some—I think two or three, possibly—quite sensitive cases were dealt with in the adjudication panel, in the end, perhaps, actually in writing, rather than remotely, but they seemed to be able to work around the lack of face-to-face meetings.

And then, of course, we come to the one that, undoubtedly, is the most difficult, in terms of remote hearings, and that is the mental health review tribunal. I should start by saying that I have no doubt that in a very significant majority of all of the cases in the mental health review tribunal, there is no substitute for face-to-face hearing if you want to achieve the best possible result. So, I accept that we are inevitably thinking about what's second best. And as to that, as I say, it's extremely difficult, because some vulnerable people would prefer to be on the telephone, some vulnerable people would prefer the video platform. And it is, you know, quite difficult to decide which is best in a particular case. So, I think that's an overview.

The other thing that I would say, and I think one does have to bear this in mind, is that vulnerable people will find any kind of process quite difficult. One shouldn't underestimate how difficult face-to-face hearings are for some mentally-ill patients or some vulnerable parents. So, it isn't as if there's a perfect answer in this world to access to justice, because, when one's dealing with vulnerable people, by the very nature of things, they are going to find a judicial dispute resolution process very stressful.

13:55

Yes. Thank you for that. That was really helpful insight and one we really needed to hear. And I noted, also, from the recommendations of the Legal Education Foundation project, that they recommended a minimum technical performance below which fairness and efficacy of hearings is threatened. Would you agree with that, and I wondered what your views—and I think I know them now, the views—on the impact of remote hearings are on the fairness and perceived fairness of decision making?

Well, so far as is possible, I believe that our tribunals seek to replicate remotely that which would occur if it was face to face, all right. Now, clearly, they are not the same, but the procedural safeguards are very similar, so that the chair will keep control of the hearing, if there are lawyers involved, they will behave in a proper professional manner and so forth and so on. And, insofar as it is humanly possible, those safeguards that are in place in a face-to-face hearing can be replicated in a remote hearing. What it needs, of course, is experienced chairs in order to ensure that, in individual cases, that happens. Now, I'm not just saying this; I actually believe that we do have very experienced chairs who are capable of ensuring that kind of procedural safeguard for the people participating. And especially so in our tribunals that deal with the most vulnerable.

You'll be aware that the president of the mental health review tribunal has been the leader of that tribunal for very many years; similarly with the president of SENTW, and they are supported by some very significantly experienced legal chairs. So, I understand why the foundation would suggest that there ought to be a minimum number of safeguards and fairness, and it is tempting to think that perhaps there should be some, I don't know, written documents setting out those minimum standards. But so many of these tribunals are individualistic once they get going, and I think that what's more important than some formulated, written standards is having really experienced, good chairs. That's what ensures procedural fairness, in my experience.

I think that was really helpful, and, yes, that experience goes a long way, I know that. Just touching further on the vulnerable—you've reflected on this quite a lot, and forgive me again for going over some of the ground that you've already covered; I suppose it's really for us to get even more of an impact of the holding of remote hearings for people with limited internet access, for instance, the impact of holding remote hearings on support or of hearings for the support offered to litigants in person. Have you got some—

14:00

Well, internet access, of course, is a very real problem, and there's no getting away from that. What we do, in effect, if internet access is not available—and Rhian will contradict me if I'm making this too simplistically—is we simply revert to telephone hearings. That's the only available substitute, as far as I can see. I would agree with you, Mr Fox, that, when I talked about seeking to replicate what goes on in face-to-face hearings remotely, when it comes to supporting litigants in person who may be either vulnerable or not particularly knowledgeable about either their own case or the procedures generally, it is more difficult for a chair to support that litigant in person. I think that is self evident in reality. It's much easier, if you're in the same room with someone, to try and encourage them along the right path. So, that is undoubtedly, in my opinion, one of the downsides of remote hearings.

Yes. Yes, I can see that. I know also the foundation touched on that hearings could be—they identified that it could be difficult for individuals to be identified if they would be in distress or not, through the process. Should there be some reasonable adjustments put in place so that it could be identified?

Of course; of course there should. As it happens—not in the context of Welsh tribunals, but—I have, in my own judicial role at the moment, conducted a number of remote hearings, and clearly it isn't as easy to identify distress immediately when it occurs. As we are talking to each other now, it isn't quite as easy to discern our emotions as it would be if we were in the same room together. But I think an experienced judge will be on the lookout for it—that's the point—and is likely to have a fair inkling of whether or not the person is likely to become distressed. And then you can replicate, to a degree at least, what happens in a face-to-face hearing, by saying, 'Well, would you like a break?' or, 'Would you like someone to be sitting with you to assist you?' and all the sort of things that would happen in court if that was happening. But I agree, in the initial stages certainly, when someone's becoming distressed at a remote hearing, it's not as easy for the judge to ascertain that.

Yes. Thank you. I can see that. And clearly, you would agree, I know, that it's important to identify those most vulnerable tribunal users early on so you can get the appropriate support.

Yes. And I think the other thing that I should say, because it's important—and it was your use of the words 'early on' that prompted me to remember this—is that one of the features that has happened as a result of remote hearings is that, in particular cases, the chair is much more inclined to hold a preliminary hearing, so that these procedural problems, if they are going to arise, or if it's the sort of case where it is obvious that there may be an emotional element that might lead to distress, these can be discussed in advance of the actual hearing, so that the chair can then make directions as to what should occur in order to alleviate these problems. 

Thank you very much, Peter. Peter's gone quite deep there, Sir Wyn, into this, but it's such an important area. Please excuse us if we continue on this vein for a moment, because your thoughts going forward are important. So, we're going to turn to Alun, who's going to take us a little bit further on this, please, Alun.

14:05

Thank you very much and thank you very much for your answers, Sir Wyn. They've been very full and very expansive in the sense of giving us a much fuller and better understanding of the issues facing you than perhaps we anticipated this afternoon, and so I'm very grateful to you for that.

When I was in Government, we looked at what was then the special needs tribunal, before the legislation was passed, and one of the things that I found very striking about it was that it was almost like a map of poverty in Wales, that areas that have high degrees of deprivation seem to have much lower numbers of people seeking to access the tribunal. And I'm interested, because what you seem to be saying—I don't want to put words in your mouth—but what you seem to be saying is that the remote hearings are taking down barriers, or potentially taking down barriers, and my instinct would have been that for particular groups of people, for example, somebody living in a very rural area who doesn't have access to decent broadband, would be disadvantaged, and that people who weren't used to this sort of remote hearing, who don't do this sort of work as part of their lives, would also be similarly disadvantaged. But I was very interested in what you said about people finding it easier to articulate, or to make their case, if they're sitting in familiar surroundings in their home, than if, for example, they are sitting in the hotel room you described. So, do you have any understanding or do you have any more granular information about how this access issue has been broken down by—if you say local authority area, that might be an easier way to approximate these matters?

No, I don't. I can't give you a view based upon distinct geographical areas. I could ask the president of the education tribunal, as it now is, whether she could assist with that and, as I say, respond to you in writing. But I acknowledge, of course, that my views expressed about the users of that tribunal presuppose that they had access to the internet and if they didn't, then that's a completely different proposition.

As to, if you like, my experience brought to bear upon this issue of how people respond to remote hearings, it didn't surprise me that they felt more comfortable and able to articulate their case from their own surroundings. Once they get used to the use of the computer, so to speak, then I think they are quite well placed, more comfortable, to articulate. I think one of the things that may have been underestimated in the past—by me amongst many other lawyers, I'd be the first to admit—is quite how stressful face-to-face dispute resolution cases are for people who've never been involved in them before. I can well understand how people would have been intimidated, even with the most user-friendly of panels, when you have a room set out like a court, and especially if one side is legally represented as well, as local authorities generally are in these cases, so that sitting in your own home must come as something of a relief, I would have thought, in comparison.

That's quite fascinating. The Legal Education Foundation project has called for remote hearings to be restricted somewhat until we've got more detailed research available on the experience of tribunal users. How do you feel about that? Because the thrust, if I understand your evidence this afternoon, has been that you've got great confidence in the remote model.

Well, perhaps I'm sounding a bit too enthusiastic, but I think—

What I'm trying to, I think, convey is this: that there was no option but to go remote, so that I don't criticise the foundation at all for suggesting there is a need for a great deal of research about this, but my take on that is that they are suggesting that before we go wholesale down the road of forever using remote hearings. I'm, if you like, accepting the need for remote hearings in this situation because we have no alternative, but in that happy time, whenever it comes, when we can all resume an absolutely normal state of affairs, of course I accept that we would need significant evidence before, say, abandoning face-to-face hearings in some tribunals in favour of remote hearings. So, I'm certainly not going that far, but what I am saying is that there have been signs within some tribunals that they have beneficial effects that maybe hadn't been thought of in the old-fashioned, face-to-face arena, so to speak.

14:10

Okay. Chair, I'll leave it at that, if you don't mind. I know that Rhys is anxious to discuss the issues around the Law Commission's proposals, and it might well be that that will be a better use of our time. I think we've covered most parts of this area. But I would like to just say in conclusion that I think the whole access to tribunals is absolutely critically important, and equality of access as well is critically important. This might be something we may wish to return to when we've got, perhaps, the time to take a longer look at this.

All right, Mr Davies, and can I say, because I think this is a public platform, for anyone who is following it, they may be heartened to hear—I'm being a bit legalistic for the moment—that in the express duties that I have under the Wales Act 2017, the first one specified is the need for the Welsh tribunals to be accessible? So, from the moment of my appointment, I have had that at the forefront of my mind.

And that is very important. Thank you. Thank you very much for that.

Thank you, Alun, and thank you, Sir Wyn. I think we've gone into quite some depth on that now and, as Alun says, we want to cover some other areas as well. So, we're going to go on now. Rhys, if you'd like to take us on, please.

I must say, it's very odd asking you questions, but there we are. I've got the light one at the end: to discuss the Law Commission paper. Firstly, the final report's due at the end of 2021. Do you foresee it being published at the end of this year?

I would hope so, yes. I make no secret of the fact that the Law Commission has kept me abreast of the progress of their work throughout it, and on the last occasion that I spoke to them about it, they were more or less on track. Now I'm not, obviously, tying them to a particular day, but I have no reason to believe that they're not going to report, essentially, when they say they will.

I might be pushing it with this next question, but do you foresee major differences in the final report from the very detailed consultation document?

I know—and again, there's no reason why I shouldn't say this—I know that some of the responses caused the Law Commission to think deeply about some of their provisional recommendations. This now is prediction, not inside information: I would be surprised if there was a very substantial departure from the main thrust of their recommendations as set out provisionally.

Thank you very much, Sir Wyn. I don't want to go into it too much because, you know, I agree with the thrust of the consistency throughout the Law Commission's report; I agree with the introduction of the first-tier tribunal; and I think that you yourself have said you agree with the Welsh Tribunals unit becoming a non-departmental unit—a non-ministerial department, sorry. So, unless you've got anything specific you want to say about that, I want to go into the details a bit of the restructuring. Is there anything you want to say about that, Sir Wyn?

There is something I want to say about the Welsh Tribunals unit becoming a non-departmental department. I think that those—hopefully more than a few people—who've followed each of my annual reports will know that there's a common theme, which is that the Welsh Tribunals unit should be, and be seen to be, independent of Welsh Government, and that will help to promote what I regard as a fundamental, which is the independence of the judiciary. I wanted to stress that because my judicial leads do report to me from time to time that some of the users of the tribunal are somewhat sceptical of the independence of the tribunals from Welsh Government, and I really do wish to dispel that notion. First of all, as a matter of principle, the judges in those tribunals are completely independent of Welsh Government, but, secondly—and I do feel strongly about this, as you can gather—by making the tribunals unit itself independent of Welsh Government, there will be a double whammy, so to speak, for those who persist in saying that there is no such independence. 

14:15

Yes. Thank you very much, Sir Wyn. The valuation tribunal and the exclusion panels, the recommendation that they join the Welsh Tribunals. That of course will mean a large number of non-paid members joining for the first time. What issue do you think that'll have, and do you think they will want then parity with their fellow members and want to be paid members themselves? 

Well, I've got no doubt that if both those tribunals—we'll call them that for these purposes—become part of the family of Welsh Tribunals as is set out in the Wales Act, then inevitably, over time, they will change quite substantially. I don't see how that won't happen. How radical the change needs to be, I'm sorry, I don't have an instant answer. We have to remember that lay magistrates have survived in our justice system for very many centuries, and that seems to sit alongside a paid judiciary. So, it's not an impossible concept that we could continue to have lay persons, in effect, carrying out this judicial function in the context of tribunals, but I would be wrong if I said that, 'Oh, it could all be managed without any change.' I think, inevitably, it would lead to some change, and I'm sorry I haven't at the tip of my fingers got the answer to quite how radical that change may be. 

Thank you, Sir Wyn. The final question I had on restructuring is on the admission panels. I wasn't convinced by the Law Commission's arguments about not including admission panels as part of the Welsh Tribunals. The argument about being regional also applies to the exclusion panels, and I wasn't convinced by the seasonal argument either. And, of course, the idea that—. At the moment, of course, we have local authorities being part of the process and appointing the people who actually review their own decisions. It doesn't look good, and the lack of details we have about admission panels—. The number of admission panels in Wales was mentioned in the Law Commission's report. To me, that's another reason why they should become part of the Welsh Tribunals. Do you have any views on the admission panels becoming a member of the Welsh Tribunals? 

I don't have a specific view because one of the difficulties—and I'm now speaking from memory, so I hope that I have this correctly—but it seemed to me from my reading of the provisional recommendations and my discussions that it was extremely difficult to get hard data about these things. And so, for me who has no personal experience of the operation of these panels to offer a definitive view on what should happen, I think wouldn't be appropriate.

In respect of both admission and exclusion panels, I think as well as the need for there to be seen to be a proper and fair system, there are other factors that have to be taken into account, like the need for these things to be determined speedily and locally, and all the rest of it. So, I would accept that, in respect of exclusion and admission panels, there are judgments and balancing factors to be made. The Law Commission will make their recommendation and the implementing authority—if it comes to legislation in the Senedd, all of you—will make your decision about what you think is best, having weighed up those competing, or sometimes competing, considerations.

14:20

Thanks, Sir Wyn. I wanted to move on now to appointments, complaints and procedures. Again, I agree with the consistent approach across the board that the Law Commission has taken, so unless you've got any comments about appointments, I want to deal specifically with complaints. Do you have anything you want to say about the appointments?

No, I don't. I am on record in saying that I think that there is a need for consistency in the appointment process and that Welsh tribunals should have, in effect, a single appointing authority connected to Wales. Now, precisely what that is, the Law Commission will recommend and the Senedd will decide, but I cannot see any justification for some legal members being appointed by the Lord Chancellor and others in different tribunals by the Welsh Ministers and the like. I think there should be consistency.

Yes. With regard to complaints, then, Sir Wyn, I agree with the fact that the president of the Welsh Tribunals should have the power to discipline and dismiss, but it is obvious from your annual report—. And I'm one of the sad individuals that probably read all of your annual report. It's clear from the annual report the close working relationship you have with the judicial lead. How do you—. And of course, Welsh Tribunals, even with these recommendations, will still be pretty small compared to other jurisdictions. How would you then avoid the accusation or the appearance, perhaps, that there is a conflict with the president dealing with disciplines and dismissal of, especially, judicial leads?

Yes. Well, it's a very fair point. I would like to acknowledge that. Our system, by which I mean the Welsh tribunals system, works as well as it does, if that is the correct description, because of the co-operative nature of the judicial leads on the one hand, the president on the other, and the Welsh Tribunals unit in the mix. So, we all know each other very well, and there's no point in pretending otherwise. Without wishing to sound pompous, and I try my best not to sound pompous, if you create a senior judicial role, which is what the president of Welsh Tribunals is, you have to trust the person who fulfils that role to do his or her duty, and as unpalatable as it may be to discipline someone who you know well, if it is necessary you have to do it. And there will always be people, I suspect, who will nonetheless think that if the result of the disciplinary process is not as he or she thought it would be, it's because the president let off his mate. I'm afraid we live in that world where that may happen, but again, without wishing to sound pompous, a senior judge should be capable of acting impartially. That is what he or she has been appointed to do.

Of course, if they follow the second process of appointment for your successor, you successor might not necessarily have held a senior judicial post before now.

Well, he or she won't have held a senior judicial post, but the presidency of Welsh Tribunals is itself still a senior judicial post. By virtue of being the president, you will be a member of various committees, UK wide, consisting of senior judges. So, you will be taking up a senior judicial post, and obviously my hope is that even if the route were to be the second route not the first route, there would still be high-calibre candidates coming forward, who are capable of being appointed as High Court judges, but for whatever reason decided that they didn't want to be one at this moment in time.

14:25

Thank you, Sir Wyn. I want to move on to procedural matters and the procedural rules. I didn't want to go into details about the procedural rules themselves. I agree with the fact that there needs to be some consistency with regard to stuff like the overriding objective, but also some leeway for specific tribunals to deal with specific issues. So, unless you have anything you want to say about the procedural rules, I just want to mention about the Tribunal Procedure Committee. Did you have anything you wanted to say about the rules themselves?

Not about the rules themselves, no.

The committee, Sir Wyn, is there a real need for it? Is this just another layer of bureaucracy? Is this just Wales again, 'If in doubt, establish a council or a committee'? What difference will this committee have to, say, your regular meetings with judicial leads?

I don't think it will just be a talking shop. I do think that if a committee is formed it should have a different composition to the judicial leads, so that it includes, as I believe, say, the Civil Procedure Rule Committee would, practitioners as well as judges and administrators. And I do think that it is important to have people other than the judicial leads on a committee of this kind because, with the best will in the world, one becomes familiar with the rules which we operate, and so it's crucially important to have a fresh look every now and then.

So, in answer to your question, 'Could the president of Welsh Tribunals do it alone?', the answer is that, 'Yes, he could, or she could'. Would he be assisted—. I'm using 'he' because I'm a he at the moment. Would he be assisted, yes, because—. Would he be assisted, sorry, by further people offering a view? Yes, because I think it's vitally important that users and practitioners have the opportunity to really influence the rules that govern the disputes that they are engaged in.

Thank you, Sir Wyn. My final question on appeals. Now, it's probably been no shock to anyone that I would prefer an establishment of an upper tribunal for Wales, for several reasons. But, again, I think consistency is a strong argument here. But, how would you deal with accusations of, 'There won't be enough work', and perceived lack of expertise, and how would the establishment of an upper tribunal for Wales impact the relationship between, for example, the Mental Health Review Tribunal for Wales and the mental health First-tier Tribunal in England? Would the establishment of an upper tribunal impact that relationship?

Well, again, I'm sure that anybody who's followed what I've had to say about this topic will know that I also favour the creation of an appeal body for Wales. That is what I said in response to the provisional paper produced by the Law Commission. Clearly, at day one, there will be a small amount of work, and it may be difficult—and I stress the word 'may'—immediately, to interest high-calibre people in applying for the role if they think that they'll be limited to one or two cases a year. So, there are practical difficulties that have to be addressed, but I favour it because, and this will be familiar to you, if I may say so, if the recommendation of the Commission on Justice in Wales is carried out, which is to the effect that, in future Welsh legislation, dispute resolution should be determined by the Welsh tribunals where that is a practical possibility as opposed to the courts of England and Wales, it won't be very long before the work will grow. And I see the Law Commission as being a building block, if you see what I mean, and it's better to get the foundation in place now while we have the opportunity. It may be that in the next five or ten years, or whatever, the amount of work going to a Welsh appeal body will be comparatively little, but I have no doubt that over time that work will grow and it will then become a very rewarding post for persons to hold.

14:30

As a matter of—. I should say this, since you asked me about succession planning for my successor: at the moment, the president of Welsh Tribunals does not have a clearly defined judicial role. It seems clear to me at least that if there were an appeal body, the president would play an important part in it, as a judicial role, and that would, undoubtedly, be an advantage, not a disadvantage, in finding a successor to me.

Well, Sir Wyn, we've actually—thank you, Rhys—run out of time. So, it places me in the invidious position of either—we wanted to ask you a little bit about next steps, but we're happy to write to you about how we take this forward, unless you've got any brief thoughts that you want to give us in a couple of minutes about when the Law Commission reports with its recommendations, what your thoughts are on taking that forward and the interplay between yourselves, the Welsh Government and the Senedd on that, and legislation that might be required as well.

Well, obviously, I will read it with great interest, but as 'important' as the role of president of Welsh Tribunals is to the current tribunals system, ultimately it will be matter for those taking it forward to decide how much they want to consult me, if at all, about what they do.

I can say now and publicly that if as I expect the Law Commission determine that the Welsh Tribunals unit should have an existence that is more independent than its current one, I will be agitating with the First Minister that he carries that into effect. I have an annual meeting with the First Minister, and at each of those meetings I tell him that. I've now told two First Ministers, so I won't stop until it happens or they get rid of me, so to speak. [Laughter.]

Thank you very much. Look, thank you so much for taking the time and sparing us a couple of extra minutes. They often say in hill walking that you've got to watch for those last few steps down the hill, because those are the ones you trip up on, but I think you walked very solidly all of the way back down that hill, including that last question. Thank you very much indeed, and to your colleague as well—thank you very much—who hasn't had to step in for you whatsoever. You've been across the brief very well indeed.

We'll definitely keep in touch. We will send you the transcript for accuracy as well, clearly, and I'm sure we'll follow up any other matters with you as well, but it's been good to have you in front of us. Thank you for being frank and extensive in your answers with us as well; it's been very helpful.

Well, thank you. I can assure you that Rhian did brief me very well, so thanks very much. [Laughter.]

There we are. We will give you a couple of moments, both of you, to virtually leave the room, and then we'll recommence our public part. Thank you—diolch yn fawr.

3. Offerynnau sy’n cynnwys materion i gyflwyno adroddiad arnynt i’r Senedd o dan Reol Sefydlog 21.2 neu 21.3.
3. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3

Okay, there we are; thank you, colleagues. We'll move on now through the next item of our public session today, now that Sir Wyn and colleague have departed. We're going to move on to item 3, instruments that do raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. We have a made negative resolution instrument, SL(6)065, the Non-Domestic Rating (Miscellaneous Provisions) (No. 2) (Amendment) (Wales) Regulations 2021. Now, we have one technical point for reporting here, and I think one of our clerking team would like to address this, please. 

Diolch yn fawr, Chair. Yes, there is one technical point raised in relation to these regulations, which amend the Non-Domestic Rating (Miscellaneous Provisions) (No.2) Regulations 1989. Regulation 2.2 of these regulations amends regulation 2(1G) of the 1989 regulations, so that it refers to a non-domestic rating list in Wales, compiled on 1 April 2021. Now, given that section 54A of the Local Government and Finance Act 1988 requires that non-domestic lists need to be compiled in Wales on 1 April 2017 and 1 April 2023, and on 1 April in every fifth year afterwards, the Welsh Government were asked to clarify the purpose of the reference to a list compiled on 1 April 2021, which is not one of those dates specified in that Act. In its response, which is included in the supplementary papers, the Welsh Government accepts the committee's view that non-domestic rating lists must be compiled in Wales on those dates I just outlined. It notes that the references in the 1989 regulations to a list complied on 1 April 2021 were inserted in 2019 in anticipation of the UK Government's non-domestic rating lists Bill receiving Royal Assent, which would have provided that 1 April 2021 would be the date of the next rating list to be compiled in Wales. However, that Bill was not enacted. A subsequent Bill, which then became the Non-domestic Rating (Lists) Act 2021, amended the relevant sections of the 1988 Act to provide that the next rating lists are to be compiled on 1 April 2023.99

So, the Welsh Government notes that the legal effect of the amendments to the 1989 instrument is that the rates prescribed in the rating list compiled on 1 April 2017 will continue in effect until a rating list is compiled on or after 1 April 2023. So, we agreed that this assessment is correct, but we'll just note that, from an accessibility perspective, the 1989 regulations now contain a reference to a 2021 rating list that was not compiled. Thank you. 

14:35

That's brilliant. Thank you, Aled. That was extensive and in quite some detail. Are we happy to note and agree that report? We are. Thank you very much.

4. Papurau i'w nodi
4. Papers to note

That's the only item under that particular issue of statutory instruments today, but we have several papers to note under item No. 4. Most of them are to note and we might be able to return to them as needed in private session. 

The first one is item 4.1, correspondence from the First Minister on the inter-governmental meeting. So, are we happy to note that? We are. Thank you very much.

Secondly, we have correspondence from the Counsel General and Minister for the Constitution on the inter-ministerial group for elections and registrations. This informs the committee of an upcoming meeting of the inter-ministerial group. Are we happy to note? We are. Thank you very much.

Next, we have correspondence from the Minister for Climate Change in respect of the Phytosanitary Conditions (Amendment No. 2) Regulations 2021. This informs us that the Minister has given her consent to the Secretary of State to the application of this statutory instrument to Wales. Again, if I can ask if we're happy to note that. We are. Thank you. 

Item 4.4, correspondence from the Llywydd's Committee on the Elections Bill. We're invited here to note the letter to the Minister of State for levelling up and equalities, informing the committee of the Llywydd's Committee's views on the UK Government's Elections Bill. We may want to return to this in private session, but are you happy to note for now? We are. Thank you. Okay. 

Then we turn to 4.5, correspondence from the remuneration board in respect of Public Service Pensions and Judicial Offices Bill. Again, it's to note this letter informing us of how the board intends to interact with HM Treasury regarding the Public Service Pensions and Judicial Offices Bill. And just to note for committee members, the legislative consent motion for this Bill will be laid this week, we understand. So, again, we might want to defer discussion on that to the private session. Happy to note that? We are. Thank you. 

Item 4.6, correspondence from the Counsel General and Minister for the Constitution, which is a follow-up to our evidence session on 20 September. This again might be something we want to return to in private discussion, but are we happy to note for now? We are.

And then item 4.7, correspondence from the Minister for Climate Change in respect of the Environment Bill. It is regards making an amendment to the UK Government's Environment Bill, which would make a provision in relation to Wales for a purpose within the legislative competence of the Senedd. Now, just to note for colleagues, this is pertinent to item No. 10 on today's agenda, where we'll be discussing the supplementary legislative consent memorandum on the Environment Bill, which was laid last week, last Thursday. So, if you're happy to note that, I think we will return to that. Yes. Okay.

And then we'll move on to item 4.8, correspondence from the Minister for Finance and Local Government in respect of SL(6)067, Representation of the People (Amendment) (Wales) (Coronavirus) (No. 2) Regulations 2021. Now, this is seeking our consent to expedite the timetable for considering these regulations in order for the Plenary debate to take place on 9 November 2021. And just for colleagues to note, the Senedd lawyers are able to review these regulations in time for consideration at next week's meeting. So, in which case, are you happy to note for now? We are. Thank you very much.

Item 4.9—and we do have quite a bit of correspondence this week to put on record—is correspondence from the Counsel General and Minister for the Constitution with an invitation to give evidence. So, he's confirming his attendance at our meeting of 29 November to discuss the codes of Welsh law programme and proposals for the accessibility of Welsh law. So, are we happy to note that? We are.

And then, item 4.10, correspondence from the First Minister in respect of—we're very familiar with these—the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 19) Regulations 2021. So, if Members are happy to note the letter, which again is seeking consent to expedite the timetable for considering these regulations in order for the Plenary debate to take place on 9 November 2021, and, again, Senedd lawyers are able to review these regulations in time for consideration at next week's meeting, are we happy to note? We are. Thank you very much.

In which case, that is all the correspondence.

14:40
5. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod.
5. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

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.

Motion moved.

I ask committee members, if they're happy, then, in accordance with Standing Order 17.42, to resolve to exclude the public for the remainder of the meeting so we can move into private session. Are we content? We are. Thank you very much. And we'll just pause while we move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:43.

Motion agreed.

The public part of the meeting ended at 14:43.