Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad
Legislation, Justice and Constitution Committee13/03/2023
Aelodau'r Pwyllgor a oedd yn bresennol
Committee Members in Attendance
|Alun Davies AS|
|Heledd Fychan AS||Yn dirprwyo ar ran Peredur Owen Griffiths|
|Substitute for Peredur Owen Griffiths|
|Huw Irranca-Davies AS||Cadeirydd y Pwyllgor|
|James Evans AS|
Y rhai eraill a oedd yn bresennol
Others in Attendance
|Rhian Davies-Rees||Pennaeth Uned Tribiwnlysoedd Cymru|
|Head of Welsh Tribunals Unit|
|Syr Wyn Williams||Llywydd Tribiwnlysoedd Cymru|
|President of Welsh Tribunals|
Swyddogion y Senedd a oedd yn bresennol
Senedd Officials in Attendance
|Gerallt Roberts||Ail Glerc|
|Kate Rabaiotti||Cynghorydd Cyfreithiol|
|P Gareth Williams||Clerc|
|Sarah Sargent||Ail Glerc|
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 yn y Senedd a thrwy gynhadledd fideo.
Dechreuodd y cyfarfod am 14:03.
The committee met in the Senedd and by video-conference.
The meeting began at 14:03.
Welcome to this meeting of the Legislation, Justice and Constitution Committee. Just to let everybody know, we've had apologies today from Peredur, who isn't able to join with us today, but we're delighted to have Heledd Fychan with us, stepping in as a substitute. Heledd is joining us remotely. Thank you very much, Heledd, for stepping in. Heledd, if you do want to come in at any time within this, I'll keep an eye anyway, but either wave to me or raise your electronic hand, or shout at me, whatever. I'll keep a good eye.
So, just to remind everybody, the meeting is being broadcast live on Senedd.tv, as usual, and the Record of Proceedings will be published, as usual, and, in a hybrid situation, our Standing Orders apply exactly as per normal. We're not expecting a fire alarm, but if there is a fire alarm, we'll follow the ushers to the fire exit, but we don't have a test forecast. Just to remind Members and everybody in the room here today to make sure that mobile devices are turned to silent mode, and we're operating through the mediums of Welsh and English. We have interpretation available at today's meeting on the headphones here, which you can use as well. The sound operator is operating your microphones; no need to mute/unmute, if you're on it virtually.
This brings us, now, to the first of our substantive items today, which is our evidence session with Sir Wyn Williams, the president of the Welsh Tribunals, on the back of the annual report 2021-22. Sir Wyn, you are very welcome indeed, and we're delighted to see you, and also Rhian Davies-Rees, head of the Welsh Tribunals unit, as well, which is referenced within the report. So, a very big welcome to you. We've probably got an hour or thereabouts, depending on your time, as well. So, if you're happy, we'll go straight into questions.
Of course, yes.
There we are. Thank you very much, and thanks for the opportunity to have a good look through your report, as well. Within the report, there's quite a bit of discussion there; it refers to bringing forward legislation to reform the Welsh tribunals, anticipating that this might come forward within this session of the sixth Senedd. Have you had any discussions with Welsh Government about their intentions on that legislation?
I saw the Counsel General on, I think it was, 1 February. Yes. The First Minister, for obvious reasons, couldn't be present; normally, he would have been. The Counsel General, obviously, wasn't going to commit to me the legislative programme, but I did encourage him to the view that, having gone to the step of taking the Law Commission's report very seriously, as they have in their response to it, then, without legislation, it would probably not achieve very much. I think he understands that fully, so I'm very hopeful, as a citizen and as the president of Welsh Tribunals, that the legislation is brought forward.
Very good, and your point is well made that we can't proceed without the legislation. Without teasing you too far down that line, did he give you any hint that perhaps he would be hopeful of bringing it forward within this sixth Senedd—if not an accurate timetable, that we would see it before the end. If he didn't, not a problem.
No, I don't think there's any secret about it. In all my discussions with both the First Minister and the Counsel General last year, and with the Counsel General this year, the view has been expressed that they would very much like to bring it forward within this session. That's the way I have proceeded, effectively, on the basis that that's their intention, and I hope they're able to bring their intention to fruition.
That's brilliant. And as a citizen, as well, as you say, you would like to see it, which is great to hear. Within the annual report, you note in there that Welsh Government hasn't committed to creating a non-ministerial department to administer the Welsh tribunals. Now, this was one of the recommendations of the Law Commission. What's your take on why they've taken this approach, and do you think it affects the independence, then, of the Welsh tribunals?
Can I answer the second part first?
I made that point because, in the Law Commission report, there are, effectively, two models under discussion. One would be an agency of Government and one would be a non-ministerial department, and the one that has the appearance of a greater degree of removal from Government itself is the non-ministerial department. Now, in Scotland, in effect, that is the system. I'm not going to try and answer in detail for our Scottish brothers, but they do have, in effect, a non-ministerial department. The England-and-Wales system, His Majesty's Courts and Tribunals Service, is an agency of the Ministry of Justice. Both carry out their functions in an open and transparent way, so I'm not particularly concerned that there would be a difficulty if the Welsh Government opted for the HMCTS style. But—whether this is logic or sentiment, I'm not quite sure—we're much closer in size to Scotland, and their system of having a non-ministerial department does seem to work quite well in Scotland, if I can be so bold as to say so. Of course, as a judge, I favour it because, in Scotland, the judge chairs the board that administers the non-ministerial department. So, it does have the advantage, certainly in perception terms, that the judge has a very, very significant role, not just in being a judge, but in ensuring that independence is preserved.
Very good. Alun.
I'm interested in your remarks there. I was interested particularly in that you qualified the assertion that a judge as chair of the board would guarantee an arm's-length independence, in terms of perception at least, you said.
And I was just wondering why you felt the need to say that, rather than simply say it would provide independence, which is what I think we all want to see.
Yes, well, I think from my own practical experience, in the England-and-Wales system, the Lord Chief Justice obviously has a very considerable role in all of this, and so the difference between the influence that the Lord Chief Justice brings to bear on transparency issues is probably identical to the chair in Scotland, who's a very senior judge. It's just, I suppose, that, to the outside world, who may not be as au fait with the nuances of it all, you can say, under the Scottish system, the chair of that board is a judge.
There we are.
Whether in truth—. Certainly in substance, there's no problem, but I've lived in the world long enough to know that perception sometimes matters.
You realise that all your words take on added significance now, which might be because you're going on in a few weeks. Every word you say has more profound significance as you reflect back.
Quite the contrary, I would have thought; I can now be dismissed out of hand. [Laughter.]
Okay. Yes, indeed, James.
I have a question that's about the independence, and you can take me as one of those people who do not know the nuances of all this. So, what do you think the benefits and the challenges would be of being more independent of the Welsh Government, which is what the Law Commission have said?
Well, I think that, in terms of the justice function, it's important not just that justice is done, but is seen to be done. And I think, quite rightly, our citizens get nervous about too much of a connection between the Government and the judiciary, so that there is certainly a need to make the Welsh Tribunals unit independent, and the debate is how you do it.
And, as I've said, in respect of the two potential ways of doing it, then that's much more nuanced. No doubt, there may be wider concerns than just what a judge might think of that, and I accept that. But I think that's the fundamental principle—that because justice has to be seen to be done, then there's a very obvious need for the body that administers or facilitates the administration of justice to be seen to be divorced from any Government, and, in this case, Welsh Government.
Okay. That's really interesting. Can I draw you to the effect of creating an appeal tribunal, on the very basic principle of access to justice? What do you think it will deliver for the people of Wales?
On a practical level—and I do want to keep this to a more practical level because, obviously, at one end of the spectrum, it may be that there are political issues involved, which obviously I don't want to delve my fingers or feet into—on a practical level, can I give you an example? If you wish to appeal a decision of the special educational needs tribunal that was, the education tribunal as is, or the mental health review tribunal, you go to the Upper Tribunal of England and Wales. You would be very lucky to have a case heard within months, and it may be much longer than that. Now, obviously, if it's a truly urgent case, then efforts would be made to bring it on quickly. But if it's a normal, run-of-the-mill appeal, you have to take your turn. So, on a practical level, having our own appellate tribunal, where we could arrange appeals at quite short notice, very quickly after the event, would be a huge advantage, in my opinion. I say that with a degree of experience that I'll share with you. Contemporaneously with my presidency of Welsh Tribunals, I've been a judge of the Court of Appeal of Guernsey and Jersey, where they have their own appellate system. And appeals in Guernsey and Jersey are heard literally within weeks, or at most a few months, from the first instance decision. And one of the good things about talking about justice in general terms is that I think we'd all agree that we don't want to rush things, but we want to get things done speedily, if possible. So, that's a good practical example, in my view, of why it would be good to have an appellate system in Wales.
The second is a bit more convoluted, but I'll give you the answer as quickly as I can. Currently, the appeal routes from our various tribunals go sideways, upwards, and all the rest of it. They're not the same. And I think that it would be an advantage to the citizens of Wales to know that, if they've got a gripe with their tribunal, they go to the Welsh appeal tribunal and they don't have to work out where they go in England and Wales. And we have to remember that many of our tribunal users are litigants in person, and it can be pretty difficult for a litigant in person to work out their appeal rights. And I know that the chair of the tribunal will try to explain it to them and all the rest of it, but I think it would be much easier if they knew that, 'If I don't like that decision, I can go to an appeal tribunal in Wales'—which will sit in Cardiff, Swansea, Caernarfon, or wherever—'to hear my appeal'.
Yes. Okay, very good. Alun, did you want to come in on this, and then I'll go to James?
Yes, I just wanted to follow up on what you said about the time lag at the moment that the Wales and England system creates, and the assertion that Wales could do it far more quickly. That was based on your experience of the Channel Islands.
Is there any reason why the system in Wales could do it more quickly if the current system of Wales and England is unable to work in the way that you have described? Is it simply the experience of the Channel Islands that you're drawing on, or is it a knowledge of something in the system in Wales?
I think this draws me into how you would appoint judges of the appeal tribunal, and the assumption is that appeal judges are usually salaried judges, and all the rest of it, as they are in the England and Wales system. But they don't need to be that, especially in a very small jurisdiction, which our tribunal system is. We could have, say, a panel of five, six, seven people who can be called upon to sit on an appeal. It wouldn't be their main job, they may be doing many other jobs, but they'd be qualified to do it, so that you could therefore get them together at short notice and, as I say, it would just be much more efficient, in my opinion.
And there are statutory barriers preventing that happening at the moment.
Yes. Well, the statutory barriers are that all our tribunals pre-existed the Wales Act 2017, and so they've got rights of appeal going, as I've said, some to tribunals, some to courts, which pre-date all of this. So, there would be a need for legislation to change that.
Okay. Thank you.
James is going to take us a little bit deeper.
Yes, thank you. You mentioned earlier about getting cases dealt with speedily, and that's really important. Do you think the Welsh Tribunals unit have enough resources to help all Welsh tribunals in making sure that things are done as speedily and justly as possible?
I'd better choose my words carefully now. [Laughter.]
You speak as freely as you want to. That's what we're here to do.
There have been challenges, as I'm sure Rhian would accept, about filling all posts necessary in the Welsh Tribunals unit, and every time there are one or two down, it's more difficult for cases to be administered as efficiently and speedily as we would wish. But, in defence of the Welsh Tribunals unit, they are pretty good at achieving what they need to achieve in that respect. But, that's not to say that, from time to time there aren't challenges, and one of the difficulties is that this is demand led. So, in some years, you can get very few cases in a tribunal; in other cases, you may get many more. And so, it's quite difficult, I think, to manage these things with the degree of accuracy that in an ideal world we would like. But if you have experienced administrators, as we do, they're pretty adept at doing it.
Lovely. I want to move on, because obviously the Welsh Tribunals service is relocating to Powys County Council offices. What impact do you think that might have, considering that that organisation might be subject to cases against it? How does it maintain that impartiality when you're sharing a close space with it?
Well, when this was first mooted, Rhian came to me and said, 'What do you think about this?' To be quite frank, I said, 'Well, I don't think very much of it at the moment,' because we had premises in Llandrindod Wells, that was specific to the tribunals. But, you know, I understand the financial pressures that are brought to bear on these things, so with Rhian's considerable assistance, we set about ensuring that the problems of perception about being housed in a local authority building were removed, and the major one is that there are never any hearings there. It is purely an administrative outpost. We would never hold a hearing in those premises. Now, that might have been problematic, except that the education tribunal, which is the one probably most badly affected by this, was well used to going out around the country, holding hearings in hotels and all the rest of it, to make it more easy for the users to come to the hearing. So, we dispelled the notion from the start that there could ever be any hearings there, and I think the notion of it simply being an administrative centre therefore cures quite a lot of the problem.
Okay, thank you very much. I just want to move on slightly, if that's okay, to the agricultural land tribunals. We've seen quite a significant increase in cases there between April and December 2022. Why do you think that is, and has this been maintained, going forward?
I don't want to sound flippant, but in that tribunal, it is chance. That tribunal probably is more prone than the others to swings in numbers, because it deals with things like succession over agricultural tenancies, for example, so that, if two or three people—I don't wish to be flippant—die in a year, then that increases the possibility of increasing cases. I think, probably, the pandemic affected that tribunal quite substantially in that people didn't really bring their complaints to the tribunal unless they really had to, because so much of the work of that tribunal involves going to the farm, site visits, and that sort of thing, which obviously was very difficult for a year or two. So, I suspect that what happened was that, in those pandemic years, the work in that tribunal was depressed as low as it could be.
Okay, because we've seen in other areas, haven't we—the Educational Tribunal for Wales, the Welsh Language Tribunal—that cases have significantly decreased. So, what work have you done with those tribunals to understand why the decreases are there? And do you think people are not ready to seek help through the tribunals service?
In an ideal world—and the chair wouldn't thank me for saying it—the Welsh Language Tribunal would always have very little work, because hopefully, all the standards are complied with, and so forth and so on.
The educational tribunal is—. I wish I knew the answer to your question as to why it has fluctuated in the education tribunal. In one sense, the pandemic made it easier. The education tribunal in Wales was first class at adapting to remote ways of hearing, and in many ways, the users of the education tribunal welcomed that, because they felt much more comfortable talking about their children, sitting in their kitchen, than in a room like this. So, in some senses, you would have expected that the work might even have increased. Obviously, it didn't. It's not evidence based, but a lot of experience in the law, obviously, despite the fact that people can do things remotely in the pandemic, I think there was a general reluctance to involve in litigation unless it was absolutely necessary.
Do you think, with it going down, that there is a risk that people may not be able to access justice—they're not quite sure how to access the justice?
I don't—. I hope that that isn't the case, because both the educational tribunal and, for that matter, the Agricultural Land Tribunal for Wales, which we've been talking about, are hugely flexible in the way that they will try cases, all right? Just to take an example, if someone presents an application to one of those tribunals, there'll be some kind of hearing or some kind of written directions that will make it clear to them that you can do this remotely, we can do it face to face, we can do it at a place close to where you live, and so forth and so on. And I know that the chairs of those particular tribunals are extremely adept at letting people know that. And I do think that it's easy to blame things on the pandemic, but I go back. I think, just as some of us were reluctant to go to concerts, so some of us thought, 'Well, if it's only this much involved, am I really going to bother?' I think it will be interesting, if you're sitting here next year together, if you ask the new president whether there's been any kind of increase in work now that, in effect, the pandemic is playing no part in how things proceed.
Thank you, James. Alun, do you want to take us on to the area of appointments and skills and so on?
Yes. I think you've already touched upon this, Sir Wyn. The Law Commission made some proposals on the role of the president of Welsh Tribunals in appointing members. Do you agree with the proposals that have been made?
I do. I do. You should understand, however, that the role of the president is really the last step in the process. Because, for the foreseeable future, at least, I imagine—Rhian will contradict me, if I'm wrong—Welsh Government will have an arrangement with the Judicial Appointments Commission, so that the actual competitions for judicial places will be run and administered by them. And so, when you talk about the president appointing a person, what the president does is, if you like, sign the piece of paper that confers that authority on that person. I think it's important for two reasons that that is done by the president. One is that some of our appointments in Wales are made locally, either by the First Minister—well, by the First Minister at the moment, after consultation with the president; some are made by the Lord Chancellor, still. I think it's important that we have consistency, and I think it's the consistent thing to do to confer that power on what is the senior judge in the tribunal system in Wales. So, I support it for that reason.
I also support it because if we have to always wait for things to be approved in London, that can, I'm afraid, lead to delays, which is not good either. So, there are pragmatic reasons, I think, for doing it. I stress that it doesn't mean that the president will be sitting on every selection committee or anything like that; it's really removing the role of the Lord Chancellor in London or the First Minister in Wales, and making it a judicial and not a political or administrative appointment.
I understand that and I also understand that the work is done by officials in terms of administering and running the process, and I think that's the correct way to run these matters. So, what would the role of the president be? Would it simply be to take the place of the First Minister or the Lord Chancellor, or would you foresee the president having a greater role, a wider or deeper role?
Yes. Well, I could foresee, but this is a personal view—
We're interested in personal views.
This is a personal view. For example, when the chairs of the various tribunals are up for appointment, I pose the question, 'Should the president of Welsh Tribunals then actually be on the selection committee?', for example.
Would you like to answer the question? [Laughter.]
Personal views are always more interesting than official views. Okay. Is there anything else you'd like to add to that?
No. I think, in many ways, this replicates what happens in England and Wales now in the tribunal system. The senior president of the tribunals of England and Wales is the appointing authority. He will appoint many people in the way I first described, namely by being the last link in the chain, but he will also take an important role when more senior positions are being considered.
Thank you. I'm grateful to you for your candour there as well. You have noted in your report some of the difficulties in recruitment and in making appointments. Could you outline to us any concerns you might have in terms of the capacity of professionals working in the judiciary to fulfil these roles, or whether you believe that there are actions we could be taking to actually improve the situation?
If I could answer that in a comprehensive way, I probably wouldn't have been highlighting the problem.
It surprises me, if I can put it in that way, that some judicial roles appear to attract a great deal of interest, and then, every now and then, one comes along and people are not particularly interested. I don't know. I can't answer why that would be. If I was being completely open with you, I would say that some practitioners—not all by any means, but some practitioners—might consider the Welsh tribunals to be less attractive than the English and Welsh tribunals. And I don't mean that because they're devolved; I mean because the judicial role is more difficult to perform—(a) they're nearly all fee paid, so there's no collegiate group where they meet; secondly, and I've stressed this to the Counsel General on a number of occasions, there is no tribunal centre where judges can be in a centre together and feel part of a collegiate system.
If you're in the immigration tribunal of England and Wales in Newport, there'll be some colleagues there, there'll be support staff, and it feels like a court centre. We haven't got that yet in the devolved tribunals. I've never had an office anywhere, and I'm president of Welsh Tribunals, but the lady who's the only, still, salaried judge in Wales in the tribunals centre, Mrs Kirby, she hasn't got an office even though she heads up the biggest tribunal in Wales. And so, we have a bit of work to do to make people think that the Welsh judiciary is on a par, in these terms, with the brethren or sisters in England and Wales, or even Scotland.
I think you've made some very interesting points there and I think that we need to give some consideration to them.
I just wonder if you could expand on, 'So, how do you resolve that?' What would—?
If I had a blank sheet of paper—
Yes. Looking forward a few years.
If I had a blank sheet of paper and a bit more money than we've got, a lot of Welsh practitioners—and I share this ambition—would like to create in Wales a civil justice centre—it probably would have to be in Cardiff, because it's so much bigger than everywhere else—a civil justice centre in Cardiff that encapsulated not just the non-devolved civil justice part of Wales, but the tribunal part of Wales.
And it would also become an arbitration and mediation centre—in other words, the whole thing would be under one roof. That is the solution, but it needs money.
I think the Counsel General has gone down at least part of that route in some of his evidence to this committee at different times as well.
And he's right, and I've spoken to him about it, and you may know that the president of Welsh Tribunals sits on the newly formed Law Council of Wales, and one of the projects that the law council is looking at is, in effect, this concept of a—. An arbitration centre is what they're particularly looking at, but it fits with the whole of civil justice.
It's an interesting proposition. I think the committee would be very tempted to pursue that route. In terms of—. On other issues, your annual reports also show a decrease in cross ticketing. What role do you think that could play in supporting capacity issues?
Well, I think it's the end of that question that is really the answer. Cross ticketing is monitored by the chairs of each of the tribunals and the Welsh Tribunals unit, and a cross-ticketing exercise is carried out when there's perceived to be a capacity issue in one of the tribunals. So, as it happens, we had a number of cross-ticketing exercises in my first few years that proved to be successful, and, as far as I am aware—and, again, Rhian will contradict me if I'm wrong—that solved the kind of capacity issues that then existed. So, you wouldn't expect that you'd need to do it every year. It tends to happen if two or three or four people, say, might retire at the same time, or something like that. So, it's not something that needs to be done every year, but it needs to be kept under review, for certain, every year, and it is.
Okay, I'm grateful to you for that again. I understand you've met recently with Dr Barry Morgan.
And you've discussed some of the concerns that you have with him. Are you in a position to illuminate us?
I don't think I did do it because I had concerns. I've always taken the view that it's good for me to meet the people who are going to choose judges on behalf of Wales, and so I met Dr Morgan's predecessor early on in my tenure, and then I met Dr Morgan after he'd been doing it for, I think, about 18 months, something like that. And it wasn't because I was concerned about what was happening, but I just wanted to let him know that I took a keen interest in appointments to the Welsh tribunals, and if he had anything he could impart to me, or vice versa, then—it was just a sharing of ideas.
Okay, thanks for that. Thank you very much; I'm grateful to you.
Brilliant. Thank you. James is going to take us on into another area. We're all going to be working longer now, and sometimes we'll be coming back in the twilight of our careers to add our expertise.
Yes. The retirement review.
The retirement review.
Yes, I'll ask you one question on that—I'll roll them into one in the interests of time. So, what impact could the new retirement regime have on the capacity of Welsh tribunals, and how will the new role of the Welsh president in authorising applications to sit in that retirement regime impact on the volume and efficiency of appointments?
Right, let me try and split that up. The first point I'd like to make, which I think is interesting, is that this—. The—. Let me get my words out. The power to make appointments conferred upon the president of Welsh Tribunals actually appears in an England-and-Wales statute. So, I think it's quite interesting that the UK Parliament was prepared to confer this authority on the president of Welsh Tribunals. Obviously, it's conferred for England-and-Wales appointments on the Lord Chief Justice or the senior president of tribunals. So, the position of president of Welsh Tribunals was recognised in this UK statute, which I thought was interesting, and I wanted to tell you that because I think that's of some interest.
Now, so far as exercising the power is concerned, it is quite different because, for example, when I retired as a High Court judge, I was simply authorised to sit from year to year, and at the end of each year the Lord Chief Justice could have said, 'Right, that's enough now, Wyn. We've had enough of you. Thank you very much', and there we are. Now the idea is that you appoint someone for two years. So, you give them that extended period of time, and it is very much tied—it was always tied, to be fair—to business need, but, now, my successor, as it will be, could only appoint someone if there was a business need, and I think that would be significantly scrutinised, all right. I would like to think that appointments to Welsh tribunals to sit in retirement are likely to be comparatively rare. I say that because (a) the retirement age has gone up to 75, (b) nearly everyone is fee paid. So, there'll be comparatively few people who will want to carry on sitting, if they carry on, say, until they're 71, beyond that—sitting in retirement. There may be one or two people for whom it will be attractive, but I don't foresee a great demand for it. But I'm not worried about the last point, the capacity point, because we'll solve the problem, if there was—. For example, where it might become more acute in one of our bigger tribunals, if one or two people suddenly left for whatever reason, we've got cross-ticketing, and we do have the ability to appoint for two years. So, between the two, I think there'll be no particular problem with capacity issues. But, as I say, I'm plugging the fact that a UK statute conferred this power on a devolved tribunal in Wales, or a devolved position in Wales, I should say.
Thank you very much.
Very good. Thank you. Heledd, you've been very patient, but we're coming to you now. Over to you.
Thank you very much, Chair. Prynhawn da. My colleague, James Evans, mentioned resources. But in the report, obviously, we've seen that the Welsh tribunals budget is set to be cut by £83,000 in cash terms next year, and will be under additional pressure from inflationary costs. Are you confident that there will be sufficient resources available to the tribunals in light of this cut?
Well, this is where I am going to be slightly cheeky, if I may, and point out to all present and to anyone listening that tribunals are demand led, so that a budget, of course, is an important part of the life of the tribunals, but, if, for example, there was a spike in cases because, post pandemic, people were becoming a little bit more litigious et cetera, then, I'm afraid those who hold the purse strings would be left with a stark choice. They could either provide more money to the tribunals, or they could say, 'Well, tribunals, you'll have to shut for two months', and I can't see them saying that, somehow. So, having been cheeky in that way, the more serious way of putting it is that, when I first took up this post, we did have overruns, in terms of the budget, because there were more cases than were predicted, and, in each case, money was found for the tribunals to keep going. And I think, because—being serious—those holding the purse strings and their political masters understand that tribunals are demand led, then the notion of being a precise budget is, perhaps, too strong a way of putting it, or, at least—
—I am sure my successor will agree with that analysis. So, there we are. [Laughter.]
Certainly when you raised the unknown post COVID as well, because I think that point—.
The other thing that I'd like to say, even if it isn't as a consequence of a direct question, is that, because of the ways of working that have been adopted as a consequence of COVID, it's much more difficult to predict budgets, because our biggest tribunal, the mental health review tribunal, has become adept at doing remote hearings. But there will obviously be some pressure to go back to face-to-face hearings, particularly, perhaps, in the very serious cases where you have restricted patients and the tribunals are determining whether or not they should be released from a secure hospital. In those cases, there may well be a return to face-to-face hearings, but trying to predict how many of those will go face to face, compared with what went before, is, obviously, quite difficult. So, I think I'm making a plea for flexibility, certainly for a year or two, in how strictly the budget figure is used as a yardstick of what is the precise amount to be spent, because these are very difficult things to predict.
Thank you. If I may just follow on from that, obviously, you've emphasised the unpredictability and uncertainty, but do you as president, or do individual tribunals, have processes in place to monitor the format of hearings, to see in terms of demand and see those changes so that those can be captured quite quickly, rather than wait for an annual report—so, say, in the first six months, there's a big change and so on that then impacts on the budget?
Yes, there is monitoring. For example, the Welsh Tribunals unit will have data on how many cases, as is obvious from my report, but, also, how many of them have been remote and so forth. The difficulty in this year and for, shall we say, some months hence, is that virtually all hearings have been remote until about now, and it's over the next six months or so that we'll begin to collect data that will allow some analysis to be done as to how many hearings are done remotely compared with face to face. So, this is a particularly difficult year, looking forward, to make an accurate prediction. I would hope that, say after nine months, so by Christmas of this year, a pattern will have begun to emerge about the split between face-to-face and remote hearings that will then allow for more accurate predictions of the costs of each.
Thank you. Am I all right, Chair, to move on to another theme, or are there any additional questions there?
Heledd, you carry on there. We'll jump in if we need to, but you carry on.
Great, thank you. If I can just move on, then, to the use of the Welsh language, obviously, as reported in your annual report, there's been a decrease in the use of the Welsh language in tribunals in the last two years. Are you able to provide any explanations or reasons for this?
Rhian and I discussed this, because we do keep this under review—I'd like to stress that to you. I think the underlying cause for the decrease in the overall numbers over the last two years can largely be explained by the fact that the Welsh Language Tribunal itself has had much fewer cases, and, as you'd expect, in the Welsh Language Tribunal, many if not all of the cases are conducted in Welsh. So, that has had the effect of decreasing the numbers. But I'm not going to hide the fact that the use of Welsh in the other tribunals is very, very low. It doesn't need to be low, because in all the tribunals, we have judges and lay members, where lay members sit with them, who are fully capable of conducting cases in Welsh.
I'd like you to know too that when we consider whether new appointments are necessary in tribunals, one of the things that we take into account is the number of people on the books who are capable of conducting cases in Welsh so that the tribunals themselves are equipped to deal with cases in Welsh without any doubt at all. I simply don't know why so few people in our two most busy tribunals, i.e. mental health and education, opt for Welsh. I'm sorry, I don't know. I wish I did know. When I retire, perhaps, I’ll try and ascertain whether the take-up of the Welsh language is significantly greater in the courts and tribunals of England and Wales. My instinct tells me that it isn’t, and that although the facility is there for people to use the Welsh language, on the whole, they don’t tend to do so in this formal setting.
Do you think it would be helpful to perhaps look further into this issue, or look at ways to be more proactive in offering to individuals the use of the Welsh language when they’re bringing bring cases forward?
One thing that you’ve provoked me into thinking about, having this discussion with you, is this: when I was the presiding judge for Wales, I actually chaired the Lord Chancellor’s standing committee on the Welsh language—in the court context—and it has never struck me that there was a need for the president of Welsh Tribunals to be part of it, partly because I was thinking too much along straight lines: ‘That’s England and Wales; we’re Wales’. I think it may well be the case that I would make a gentle suggestion to my successor that he involves himself in that committee, so that if any initiatives are being taken forward in the court service of England and Wales, then we can replicate them so far as it would be a good idea in the tribunal service.
Thank you very much. There are no further questions from me on this.
Heledd, thank you very much for that. Maybe I can take that on. We’re coming to the last few minutes now of what is probably the last evidence session we take with you on your annual—
I hope it’s my last ever evidence session.
Well, indeed, yes. But you never know. They keep on bringing us out of retirement; you know what happens here. [Laughter.] But are there any other lessons? 'Lessons’ is the wrong word. Are there any other suggestions that you’d like to make to your successor based on looking back, where we are now? What will you be saying to him in those quiet moments when you do the handover, and you say, ‘Listen, there’s something I'd like to say to you’?
I think what I will be saying to him is this: under the Wales Act 2017, the president of Welsh Tribunals is given certain general powers and is given a number of specific duties. But on the whole, it’s quite difficult to discern what the limits of the duties and powers are. When—if as I hope they do—the Welsh Government brings forward a tribunals Bill, I will be suggesting to him that it may be a good idea for him to try and have a significant input into how the powers and duties of the Welsh president are spelled out in the legislation.
Very good. And how would you, as you come to a close, reflect on your engagement with the First Minister and with the Welsh Government? What would you say to your successor in terms of what you’ve learned from that? You can be very diplomatic now, or, as it's the last couple of weeks, you can say, ‘Heck, I’m just going to let it all out.'
I’ve had the pleasure—it has been a pleasure—to meet two different First Ministers, both of whom, I have to say, have been very supportive of the role of president and of me personally. I’ve enjoyed giving evidence. Yes, I have enjoyed giving evidence to this committee, because one of the things that I said that I would try and do was to put some flesh on the bones of a tribunal system that was very little known in Wales, in truth. And I think by producing an annual report and by coming here to be quizzed by you, it’s helped to make this a live performance in more ways than one, shall we say.
That’s really good to hear. Do you have any observations to make on that relationship with the Senedd, with this committee, and your relationship with the Counsel General and First Minister—and I'm not saying in a good or bad way, but just in an observational way—on how that reflects on the relationship that there might be in a larger jurisdiction, like in England and so on? It often strikes us that there's a smallness to Wales that, if the relationships are good, can be very effective. What's your take from your long experience on coming into this role and the relationships there?
There's no doubt that being president of Welsh Tribunals in this very small—. We'll call it a jurisdiction, and that might be politically controversial, but I don't mean it to be—
I led you down that path. My mistake.
No, no. Clearly, it is very easy for me to get access to people in a way that might not be possible in a very large jurisdiction like England and Wales. It may or may not have helped that the first First Minister was a former lawyer who I knew personally, and the Counsel General is a former lawyer who I knew personally in private practice. I don't know whether it helped or not. Obviously, that is much more difficult in a larger system like England and Wales, although having said that, as a presiding judge in that system, if I had concerns about Wales, although I didn't have direct access to the politicians involved, the senior presiding judge and/or the Lord Chief Justice were extremely concerned to take forward my concerns. But, it was one removed, shall we say. Let's put it in that way.
There we are. Very good. Colleagues, is there anything else you'd like to raise with Sir Wyn? In which case, it just falls to me to thank you very much for the tenure that you've had, for your willingness to come in front of the committee and give evidence in front of us. I was going to say 'grilled', but I hope you haven't found it an experience of being grilled. We enjoy your candour with us. Clearly, we're looking forward to meeting your successor. Hopefully, one of the first things they'll do is listen to this evidence session and reflect on your parting words to them about how you've found the experience and what you think that they might want to focus on as well, going forward. But they'll have their own ideas, of course.
Absolutely. As is obvious from my report, I know my successor very well, and I am absolutely certain that he will have his own ideas.
Indeed. Thank you very much, Sir Wyn, and thank you very much Rhian Davies-Rees for being here as well. I notice that, even though you haven't been on the record contributing, there have been some knowing nods. [Laughter.] There haven't been any grimaces or any worrying signals.
I haven't had the proverbial kick under the table, so far as I'm aware. [Laughter.]
No, indeed. We wish you very, very well, and thank you very much. We'll send the transcript to you just to check for accuracy, and obviously we wish you well in everything you're doing as well. Diolch yn fawr iawn.
Thank you. Thank you very much.
We'll take a very short break now, as we rearrange desks and so on and so forth, before we recommence in public again just in a few minutes, if that's okay. Diolch yn fawr iawn.
Gohiriwyd y cyfarfod rhwng 14:58 a 15:09.
The meeting adjourned between 14:58 and 15:09.
Croeso nôl. We're back in session of our committee this afternoon, having in our first part of the session taken evidence from Sir Wyn Williams and Rhian Davies-Rees, president of Welsh Tribunals and head of the Welsh Tribunals unit respectively. We had a good session there, but we're now going to go into our regular business. We've got quite a lot to get through.
So, the first item we'll go to is a familiar one. Under item 3, we have instruments that raise issues to be reported to the Senedd under our Standing Orders 21.2 or 21.3. Under this item, we have one item and it's item 3.1, SL(6)326, the Council Tax (Additional Provisions for Discount Disregards) (Amendment) (Wales) Regulations 2023. We have a draft report and a Welsh Government response in our packs. Now, these regulations amend the existing 1992 regulations to ensure that people from Ukraine who move on from residing with, or do not reside with, a sponsor under the UK Government's Homes for Ukraine sponsorship scheme do not continue to be disregarded for the purposes of a discount in relation to their own council tax liability. The explanatory memorandum notes that the regulations are meant to ensure consistent and fair treatment in relation to refugees and asylum seekers from other countries as well as with other Ukraine nationals who've secured their visa by either the Ukraine Family Scheme or the Ukraine Extension Scheme. We've got one technical point only on this—yes.
Yes. The technical point asks Welsh Government to explain why it has cited a definition provision in the text of the preamble rather than in a footnote, and, in response, Welsh Government has explained why it has taken that approach, and it acknowledges that the information could have been in a footnote but it says that its approach does not affect the validity of the instrument.
That's great, thank you for that. Are we happy with that? We are, so we'll agree those reporting points. Thank you.
We'll go on to item No. 4, instruments that raise issues to be reported to the Senedd under Standing Order 21.7 and, under this, we have one item. It's item 4.1, SL(6)327, 'The Curriculum for Wales—Statements of What Matters Code'. Again, we have a draft report and a Welsh Government response. Now, just for Members to note, really, this code was withdrawn on Friday 10 March, and the Welsh Government response to our draft report notes that the code will be relaid. We have nothing further to add to that at the moment.
So, if we're happy to note that, then we move to item 5, notifications and correspondence under the inter-institutional relations agreement. Under 5.1, we have a letter from the Minister for Social Justice and a written statement from the Minister in relation to the safety, security and migration inter-ministerial group, which took place on 1 February. The Minister states that she was unable to inform us of the agenda items prior to the meeting as she did not have the agenda until 48 hours beforehand. You'll notice that she also refers in the correspondence to her hopes that, in future meetings, the documents will be able to be shared in a more timely way, and, in which case, our committee can be informed in a more timely way as well. Are you happy to note that? In which case, we'll move on. If there's anything you want to stop me on, just put your hands up or shout at me.
Item 5.2, we have correspondence from the Counsel General in relation to the inter-ministerial group for elections and registration, which took place on 25 January. There was a joint communiqué from the meeting, published last week, which gives details of attendance and topics of discussion. The next meeting is going to be arranged in due course and chaired by Welsh Government.
Then, item 5.3, we have a written statement and correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd in relation to the Sea Fisheries (Amendment) Regulations 2023. A couple of us on this committee will be very familiar with those. The Minister states she has given consent to the Secretary of State for DEFRA to make these regulations in a devolved area, as they provide for the outcome of international negotiations undertaken collaboratively between the fisheries administrations and they discharge the UK's international obligations. Those regulations were laid before Parliament on 8 March. They will come into force on 1 April.
Then we'll move to papers to note in the meeting, under item 6. Under item 6.1, we have correspondence from the Minister for Health and Social Services to the Health and Social Care Committee in respect of the Retained EU Law (Revocation and Reform) Bill. The health committee's questions cover topics such as stakeholder engagement, inter-governmental working, and the impact on Welsh Government's legislative programme as well. If you're happy to note that, we might want to return to that, then, in private.
Item 6.2, we have correspondence from the Counsel General to Kevin Hollinrake MP, the Parliamentary Under-Secretary of State in the Department for Business and Trade, in relation to the Strikes (Minimum Services Levels) Bill. That is in your pack as well. If you're happy to note, again we can return to that in private, if needed.
Item 6.3, correspondence from the Counsel General and the Minister for the Constitution to the Llywydd in respect of the Protection from Sex-based Harassment in Public Bill. The Counsel General, in that correspondence, informs us that, after engagement with the UK Government, an amendment was made to the Bill to extend the application of the offence it creates to Wales. The letter also highlights that Welsh Government officials are continuing engagement on other outstanding matters. So, this will likely mean that the LCM will be laid more than two weeks after the point at which the relevant provision has been made. But, the Counsel General believes that this will ensure it more accurately reflects the development of the Bill and will enable effective Senedd scrutiny. This is always the difficulty in the timing of putting the information to the Senedd and to our committees, but at least the explanation is there.
Item 6.4, we have correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd in respect of the Agriculture (Wales) Bill and responding to the recommendations within our report on the agriculture Bill that we published on 27 January. And just as a point of information for Members, the deadline for tabling amendments to the Bill at Stage 2 is this Thursday, 16 March.
Item 6.5, we have correspondence from the Gender Network in relation to the Retained EU Law (Revocation and Reform) Bill, and the letter draws our attention to the network members'
'profound concerns about the...Bill and the absolutely devasting impact it would have on the protection of women's rights and gender equality in the UK and Wales.'
Again, this might be something that we want to return to in private session.
Item 6.6, we have SL(6)325, the Packaging Waste (Data Collection and Reporting) (Wales) Regulations 2023. This is something that we've already turned our attention to, and I think we will come back to it, definitely. Members will recall that, at our previous meeting, we did consider a letter from the Minister for Climate Change, which informed us of errors in those regulations. Following that meeting, I wrote to the Minister, and the letter is in today's paper. Last Wednesday, the regulations were withdrawn and we await further information. So, if you're happy with noting that for now, we'll come back to that in private session.
Item 6.7, we have correspondence from the Finance Committee in relation to scrutiny of the Welsh Government's draft budget 2023-24, and the Finance Committee, in that correspondence, is requesting feedback from Senedd committees on improvements that could be made to the Welsh Government's draft budget documentation and subsequent ministerial written evidence.
Item 6.8, we have a letter from the Equality and Social Justice Committee. They attended our evidence session with Lord Bellamy, as you'll recall, on 5 December, and they've now published their report on women's experience in the criminal justice system.
Item 6.9, we have a letter from the Minister to the Secretary of State, Mr Michael Gove MP, in relation to the Social Housing (Regulation) Bill. Sorry, a letter from the Minister for Climate Change to the Secretary. A letter—. Sorry, let me start this again. We have a letter from the Minister for Climate Change to the Secretary of State for Levelling Up, Housing and Communities, Michael Gove MP, in relation to the Social Housing (Regulation) Bill, and the Minister within that expresses—which is quite interesting for us—her disappointment at the time afforded for Senedd scrutiny, which is quite interesting, following later-stage amendments. So, again, we might want to return to that.
Item 6.10, we have a letter from the Counsel General, sent following last week's meeting and our consideration of the letter from the Counsel General to the Llywydd about the laying of further LCMs on the Retained EU Law (Revocation and Reform) Bill. Memorandum No. 4 was laid on Friday 10 March. We will consider that under item No. 10.
Item 6.11, we have correspondence from our colleague Peter Fox, Member of the Senedd, in respect of the food Bill, and it was in response to our request for additional information, following our evidence session with Peter on 30 January.
Item 6.12, we have a letter from the Counsel General and Minister for the Constitution in which he responds to the conclusions and recommendations in our report on the Welsh Government's LCM on the Retained EU Law (Revocation and Reform) Bill.
Item 6.13, we have a letter to note from Baroness Drake, which we're grateful for—the chair of the House of Lords Constitution Committee—regarding improvements made to the visibility of legislative consent issues in the House of Lords business document. We've had a lot of engagement with that committee, so we're very grateful to receive that.
Item 6.14, we note the letter from the Health and Social Care Committee requesting additional information from the Minister in respect of the Health Service Procurement (Wales) Bill.
And that takes us through all the items to note and the correspondence.
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, unless there's anything Members want to raise, I'll put a motion, under Standing Order 17.42, now to move into private session, and seek your agreement to exclude the public now for the remainder of the meeting. And we're happy to do so. Thank you. We'll move into private session.
Derbyniwyd y cynnig.
Daeth rhan gyhoeddus y cyfarfod i ben am 15:21.
The public part of the meeting ended at 15:21.