Cynulliad Cenedlaethol Cymru

We're very pleased to welcome Luke Fletcher, substituting for Adam Price. As a reminder, the meeting is being broadcast live on Senedd.tv and the Record of Proceedings will be published as usual. Please can Members ensure that all mobile devices are switched to silent mode. As a reminder, Senedd Cymru operates through both the medium of the Welsh and English languages, and interpretation is available during today's meeting.

On to item 2, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. The Commission for Tertiary Education and Research (Registration and De-registration of Tertiary Education Providers in Wales) Regulations 2024. These regulations make provision in respect of the registration and de-registration of tertiary education providers in Wales by the commission, including categories and conditions of registration and eligibility for financial support. Senedd lawyers have identified no reporting points. Do Members have any comments or observations? I take that to be a 'no'. 

Item 3, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. The Historic Environment (Wales) Act 2023 (Consequential Provision) (Primary Legislation) Regulations 2024. These regulations amend Schedule 13 and Schedule 14 to the 2023 Act to make further changes in consequence of consolidating historic environment legislation in that Act and to make a further saving provision. Senedd lawyers have identified four merits points. A Welsh Government response has not yet been received. Clerks will update regarding the correspondence with Welsh Government, and Kate will update on the merits points. 

The first merits reporting point is asking Welsh Government whether the title of these regulations should also refer to saving provision as well as consequential provision. The second merits point is just to note that the regulations are amending primary legislation, and they are therefore subject to the affirmative procedure. The third merits point notes that Schedules 13 and 14 to the Act, which these regulations are amending, will come into force on the day after the day on which these regulations are intended to come into force. And then the final point is just to note that there was no consultation on these regulations, and no regulatory impact assessment has been carried out, for the reasons given in the explanatory memorandum. We are waiting for Welsh Government's response to the first merits reporting point.

Thank you very much. We haven't had any correspondence?

No.

Are we happy to accept that? Okay. And we agree the reporting points. 

Item 4, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, previously considered. The National Health Service (General Medical Services Contracts) (Prescription of Drugs Etc.) (Wales) (Amendment) Regulations 2024. A letter from the Cabinet Secretary for Health and Social Care on 7 October 2024, and a letter to the Cabinet Secretary for Health and Social Care on 24 September. The committee considered this instrument at its meeting on 16 July and laid its report on the same day. Members are invited to note the response from the Cabinet Secretary for Health and Social Care to our letter of 24 September, which was in respect of the Welsh Government’s response to the committee’s report. Are we happy to note the correspondence? Yes.

Item 4.2, the Historic Environment (Wales) Act 2023 (Consequential Provision) (Secondary Legislation) Regulations 2024. The committee considered this instrument at its meeting on 30 September and laid its report on the same day. Members are invited to note the Welsh Government response to the report, which has been received. Kate, anything you want to raise regarding this response?

Just to note that, in response to six of the technical reporting points, Welsh Government says it will make an amending instrument before the end of the year. And then also just to note that one of the reporting points arose as a result of an error on the Westlaw legal database rather than the result of an error in the regulations.

Okay. Members, are we happy? Any comments, or are we happy? We note the Government's response.

The Special Procedures Licensing Committees (Wales) Regulations 2024. The committee considered the instrument at its meeting on 7 October and laid its report the same day. Members are invited to note the Welsh Government's response to the report, which has since been received. Kate, anything to raise in relation to this response?

Members may just wish to note the response to the merits reporting point here. This reporting point noted that it was unclear why it had taken over seven years to implement the licensing scheme in the 2017 Act. And the same reporting point was raised on each set of regulations implementing the scheme that the committee has considered recently. So, in response, Welsh Government says that preparatory work for the formulation of proposals for the mandatory licensing scheme commenced in the autumn of 2019, but was paused during the COVID pandemic response. Work resumed in summer 2022, following which public consultation was undertaken on the principles for the licensing scheme. The responses to that consultation then informed the preparation of five sets of draft regulations that were consulted on earlier this year. The Welsh Government states that the approach has been taken to ensure strong and effective engagement with stakeholders, which has taken time, but has ensured that the regulatory framework is understood and capable of effective implementation. 

Members, any comments? Alun, I knew you'd say something. 

I think seven years is wholly unacceptable, and the response from the Welsh Government I don't find in any way convincing. 

I tend to agree with you. Luke, any comments? 

I'd agree with that comment. 

Perhaps we could send that to the Welsh Government. 

Yes, absolutely. 

Are we happy to note the Welsh Government's response? 

Item 4.4 is the Firefighters' Pension Schemes (Miscellaneous Amendments) (Wales) Regulations 2024. The committee considered the instrument at its meeting on 7 October and laid its report the same day. Members are invited to note the Welsh Government response to the report, which has since been received. Kate, anything to add? 

No comments on this one. 

Members, do you have any comments? No. Are we happy to note the Welsh Government response? Yes. 

Affirmative resolution instruments, item 4.5, the Prescribed Objects for Body Piercing (Special Procedures) (Wales) Regulations 2024. The committee considered this instrument at its meeting on 30 September and laid its report on the same day. Members are invited to note the Welsh Government response to the report, which has since been received, regarding the implementation of the Public Health (Wales) Act 2017. Kate, anything to raise in relation to this response?

Just that the same merits point was raised on this, so the Welsh Government have provided the same response. 

So, the seven-year gap on the first one was not a one-off. 

It applies to all the regulations that are all implementing the same part of the Act. 

Okay. On the Special Procedures Exempted Individuals (Wales) Regulations 2024, the committee considered this instrument at its meeting on 30 September and laid its report on the same day. Members are invited to note the Welsh Government response to the report, which has since been received. Kate, anything to say?

Again, the same merits point, but nothing else to note. 

Are we happy to note the Welsh Government's response? Yes. 

On the Special Procedures Approved Premises and Vehicles (Wales) Regulations 2024, the committee considered the instrument at its meeting on 30 September and laid its report on the same day. Members are invited to note the Welsh Government's response to the report, which has since been received. Kate, anything on this?

Just to note on this one that Welsh Government is going to address a number of the technical reporting points using the correction-prior-to-making process, as set out in the table in the response. And then, again, we've got the same response to the merits point about the length of time. 

Okay. Have any Members got any comments? No. Shall we note it? 

Item 4.8 is the Tertiary Education and Research (Wales) Act 2022 (Designation of Providers) Regulations 2024. The committee considered this instrument at its meeting on 7 October and laid its report the same day. Members are invited to note the Welsh Government's response to the report, which has since been received. Kate. 

The Welsh Government is going to address the two technical and one merits reporting points using correction prior to making, and again, they've set out those corrections in a table in the response. 

Thank you very much. 

Notifications and correspondence under the inter-institutional relations agreement, written statement and correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs on the Persistent Organic Pollutants (Amendment) Regulations 2024. The Deputy First Minister and the Cabinet Secretary informs us that he is giving consent to the Secretary of State to make these regulations apply in relation to Wales. Are Members content to note this? Kate, anything to add? 

No, nothing. 

Okay. Item 5.2 is correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs on the Official Controls (Extension of Transitional Period) and Plant Health (Frequency of Checks) (Miscellaneous Amendment) Regulations 2024. Another letter from the Deputy First Minister, in which he states he has given consent for the UK Government to make the regulations apply in relation to Wales. He states that consent has been given to avoid a gap between easements ending and new policies coming into effect. Are Members content to note? Any comments?

Correspondence from the First Minister on inter-governmental meetings, which I believe is the inaugural one. The First Minister informs us of the inaugural meeting of the Council of the Nations and Regions, which took place on Friday, which she intended in person. She said the focus of the meeting would be on maximising opportunity to deliver investment and growth across the UK. She also states the anticipated involvement in a further meeting between the Prime Minister, the First Minister of Scotland and the First Minister and deputy First Minister of Northern Ireland, as well as a short bilateral meeting with the Prime Minister. She states that she will provide an update after this meeting. Are Members content to note?

Correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs, the Windsor Framework (Non-Commercial Movement of Pet Animals) Regulations 2024. The Deputy First Minister informs us that the regulations were laid in the UK Parliament on 10 October. This was originally intended to take place in February 2024, but the Deputy First Minister informs us that it was delayed so that further discussion with the EU on operational delivery could take place. He says that it is considered appropriate for the regulations to apply to Wales, as it ensures consistency across the UK, avoiding legislative divergence that could jeopardise the continued implementation of the Windsor framework. Are Members content to note? Yes.

Correspondence with the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs on the inter-ministerial group on net zero, energy and climate change. The deputy First Minister informs us that a meeting of the inter-ministerial group on net zero, energy and climate change will take place in Scotland on 17 October. Are Members content to note?

Papers to note. Correspondence from the Minister for Children and Social Care to the Finance Committee on the Health and Social Care (Wales) Bill. The Minister informs the Finance Committee that the Welsh Government has identified a factual error in relation to the estimated total cost of the Bill in their previous correspondence to the committee, and provided a corrected response. Members were sent a copy of this letter by e-mail last week. Are Members content to note this? If they are, we can move on to the next item. Can I say, the Finance Committee will be looking into this?

A written statement by the Minister for Further and Higher Education on the Government of Wales Act 2006 (Devolved Welsh Authorities) (Amendment) Order 2024. The Minister provided us with an update of activity in the House of Commons and House of Lords in respect of this Order, following the UK general election. She now has the responsibility of this area, as the Order arose as a consequence of the Tertiary Education and Research (Wales) Act 2022. Are Members content to note this?

A report published by the Centre for Public Policy Wales, 'Westminster Rules? The United Kingdom Internal Market Act and Devolution.' Members are invited to note the report, published on 3 October, which was co-authored by Professor Thomas Horsley. As a reminder, Professor Horsley provided a briefing to the committee on 8 July on the topic of understanding the UK Internal Market Act 2020 and its impact on Welsh law. Members may wish to return to this in private session.

Can we have a short break and meet with the president of Welsh Tribunals, when he's available?

Can I welcome Sir Gary Hickinbottom, president of Welsh Tribunals, and Rhian Davies-Rees, head of the Welsh Tribunals unit at the Welsh Government? We're very pleased that you were able to come along and talk to us. Can I also thank the president for sending a copy of his first annual report to the committee, which we've all received? If you're happy, I'll go on to the first question.

Yes.

What are your main reflections from your first year in the post as president of Welsh Tribunals?

It's been a busy and interesting first year. I think the overwhelming reflection is the importance of relationships between various people involved in the justice system, but particularly, I think, between the executive/administration and the judiciary.

Over 20 years ago now, when I was involved in the reform of the reserved tribunals, I was engaged with the National Assembly for Wales, as it was then—the new National Assembly, as it was then—and then, there was a great focus on big political direction in these newly devolved big areas of health and education, and so on, and no real focus at all on the administrative tribunals that were devolved across with those substantive areas, despite the fact that justice is not a devolved function. And now, it's very, very different. In my discussions with everyone, but including with the First Minister, the Counsel General and the Cabinet Secretary, all of the Ministers, all of the Welsh Government now understand the role of the justice system within the Welsh Government and understand the concepts that go with that role, such as rule of law and independence of the judiciary. And that, I think, has meant that the relationship between my predecessor, Sir Wyn Williams, and me on the one hand, and the Welsh Government on the other, has been good, productive and warm, I think. So, those relationships are very important.

The other side of the relationships, which I think is also important, is our relationship with the reserved tribunals and His Majesty's Courts and Tribunals Service, both of which, of course, operate in Wales in parallel with us, and I've got good relations with the presiding judges and HMCTS Wales about trying to work together on things like estate, but also on things like policies that, hopefully, we can adopt where it's good to adopt them. Sometimes in Wales, we can do things in a different way, because we're a very small jurisdiction, but if the wheel has already been made, I'm not for reinventing it.

Thank you. I think you've answered nearly all of my next question, but if there's anything that you would like to add to what you've already said: how have you engaged with the Welsh Government during your first year in post?

At a number of levels. I met First Minister Drakeford twice, and I met the Counsel General Mick Antoniw—the former Counsel General—a number of times, and I met the new Counsel General at the Legal Wales conference this weekend. But, over and above that, I have regular meetings with both the deputy director and also the justice policy unit, who are working on the reform programme. So, it's a number of levels. Some overlap in content, with some different content between those meetings.

Okay. Thank you very much. Alun.

I'm grateful to you and I'm grateful to you for that. It seems that you've got a very good relationship with the Welsh Government. From what you've said, you've had a series of meetings at a senior level, there's a rhythm to those meetings, it would appear, and so you've got an opportunity to have a conversation, if you like, with Welsh Government, which I presume goes in both directions in terms of what they would like to see and your reflections on the work that you're doing. Over this Senedd, the Government has consulted on a range of proposed reforms, of course, and I'm wondering to what extent have these proposed reforms formed a part of those conversations, and what your reflections are on some of those proposals, given that you've now been in post and have some experience of running the current system.

Yes. A big part of those discussions—. As I've indicated, the Welsh tribunals are on the jagged edge of devolution because, constitutionally, they're in rather a peculiar place: justice not being devolved, but these bits of the justice system having been devolved with the substantive devolved functions. And the proposed reforms will give a lot more coherence to that, and a lot of benefits will come from that coherence, I think. And it's really important that these reforms go through, I think, both for the tribunals themselves, but particularly, of course, for the tribunal users. We're all here to serve the people of Wales, and the whole purpose behind these reforms is to ensure that the justice system that we provide to them is the best that we can provide.

I'm grateful to you for that. In terms of where the proposals are sitting at the moment, are there elements of those proposals that you consider to be of greater priority in terms of taking them forward? And are there any reforms that you would propose that the Welsh Government is currently not including in its approach?

To answer the second part first, because it's straightforward, the answer is 'no'. I don't think there are any elements that are not in the reform programme that—

So, you think it's a balanced programme. 

I think it's a balanced proposal. I think that, in due course, the scope of the newly reformed tribunals will expand to cover things like school admissions and school exclusion appeals, all of which appeared in the White Paper. I suspect that those won't come in immediately. But one of the proposals is to ensure that the new structure for the tribunals is coherent and flexible enough to take in other jurisdictions, whether those are from devolved areas, such as education, but not yet under the umbrella of the president of the Welsh Tribunals, or indeed from areas that are currently not devolved, which may be devolved in the future. Youth justice has been referred to by the Westminster Government as one area that may be sooner than some other areas. So, the proposals set up a scheme of tribunals that, hopefully, will be flexible enough to futureproof the system of tribunals, so far as that's possible.

Okay. I'm content with that. Thank you.

Diolch. Luke.

Diolch, Cadeirydd. If I could touch on applications to the Welsh tribunals as they currently stand, applications to Residential Property Tribunal Wales remained high in the period of 2023-24, and in the annual report, it identified a large number of appeals made in relation to changes to pitch fees. So, is this having a significant impact on the work of the tribunal, and how has it responded to some of these changes?

Understandable, good question on the basis of the RPT annual report, because you're right, that's what the figures show. However, the figures don't show the whole picture, because pitch fee applications often come in in batches, all relating to the same park. Last year, in the year covered by the annual report, there were two cohorts of applications—one I think of 38, one of 35—each relating to one park, each raising the same issues, and those cohorts have been dealt with, effectively, as one big application. So, the cohort of 38, those will be decided, I think, later this month, in a single hearing, effectively as one combined application. The group of 35 all withdrew their applications.

So, by dealing with cohorts of applications about the same park, involving the same issues, in this case-managed way, that doesn't really have any great impact on the working of the tribunal, because of the efficiency of case-managing them in that way. So, the answer to your question as to the impact that those higher numbers have on the running of the RPT is that they have no substantial impact.

Okay. Thank you for that. Applications to the Welsh Language Tribunal remained quite low over the last three years. Are you aware of any particular reason why this is, and do you think that this is a trend that will likely continue?

Again, it's a good question, because a reduction in appeals or applications to a tribunal could reflect the system working well, and it could reflect the system not working well. So, I think the question is a very pertinent question. In relation to the Welsh Language Tribunal, in the recent annual report of the Welsh Language Commissioner, she identified that the public organisations that apply the standards have a higher and higher rate of compliance, and consequently that is the scheme working and resulting in fewer applications to the tribunal. If that's right, firstly, that's the system working; and secondly, although we could expect a rise in the numbers of applications as further public organisations are involved in applying the standards, I don't think that that rate is going to be high. As you say, the numbers at the moment are very small, but they've reduced from the period when public organisations were getting used to applying the Welsh language standards, which now appear, from the commissioner's report, to be increasingly well embedded in those organisations.

So, levelling off, essentially, yes?

Yes, and levelling off at the moment at an incredibly low level.

Okay. Diolch.

Alun.

I was reminded, reading the report, that your predecessor outlined what he described as a fierce competition for appointments across the UK, in terms of across different tribunals and courts, and he spoke about how difficult it could be sometimes to fill places, and I'm wondering whether that's your experience. You reran a recruitment campaign for the Mental Health Review Tribunal for Wales, I note, and I'm wondering, if you do believe there is difficulty at the moment in recruitment, why that might be, and if you do agree with that, then how would you seek to deal with it?

In relation to the mental health appointments, which were two salaried posts, you're right that the competition was rerun after the initial competition did not result in the Judicial Appointments Commission identifying candidates that it considered were suitable for appointment, and hence the rerun. I think, before the rerun, better steps were taken to encourage individuals with appropriate experience and qualifications to apply.

In terms of that particular competition, there was interest. We identified two candidates who are now in post who satisfy the criteria and with whom we are very pleased. So, in terms of an example, I'm not sure that that example reflects the competition Sir Wyn referred to, but there is that competition, and the competition, of course, is not between Wales and England, it's between the devolved tribunals and reserved tribunals, many of which hear cases and deal with cases from Wales.

I think there is a risk, if there is any disparity in pay, terms and conditions, training or opportunities, that individuals will choose to sit in non-devolved tribunals, rather than devolved tribunals. The background to that is this: 20 or 30 years ago, most fee-paid members of the judiciary, tribunals or courts did that work as a matter of public service, and often with a view to seeing whether they wanted to apply for a salaried post and whether they had the requisite attributes for such a post. Indeed, in those days, there was a term in the terms and conditions that you should not and could not rely upon the income from such posts as your income. That, of course, now is completely different. The UK Government, understandably, for reasons of diversity and inclusion, have encouraged people to hold a portfolio of jobs, including or even restricted to judicial offices, which is their living—that's what they do to earn their money. Consequently, things like rates of pay are more important in practical terms than they once were. It's not to say that judicial office holders are not driven by public service, but, for some, that is more important.

I completely accept that, and I think paying people for the job is not an unreasonable expectation. So, do you believe that there is a perceived disparity between the two systems, or a real disparity, not perceived?

There are two halves to my answer. In terms of pay, which is, as it were, the most overt, the sharpest edge in terms of parity, there was parity until 2023-24, because the Welsh Government and the UK Government adopted exactly the same pay awards each year. Last year, there was a disparity in the pay award, because the Welsh Government did not make an award in line with the senior salaries review board recommendation, which the UK Government did, and so there was a 2 per cent deficiency in Wales compared with the reserved courts and tribunals. One understands, absolutely understands, the financial pressures on the Welsh Government that resulted in that disparity, but I'm pleased to say that that disparity has now gone, because the Welsh Ministers, for 2024-25, have announced a pay award of the SSRB recommendation, which has been accepted by the Lord Chancellor for the reserved tribunals, plus 2 per cent. So, we are back to parity.

And that, I think, is very important. It's not simply the cash, although, as I say, for some people that's important; it's also a mark of the value, the perceived value, given by the Government to the judicial office holders. And so, hopefully, that has restored morale within the judicial office holders in the devolved tribunals.

But the second part of the answer is that, over and above the rates, there are disparities in pay for things like non-sitting days, for preparation, for writing up, for cancellations, in all of which there's a disparity against the devolved tribunals in favour of the reserved tribunals. Those are much more difficult to address.

Why is that?

I think it's historical; they've simply drifted apart over time. There's a big piece of work going on now by the Ministry of Justice in respect of reserved tribunals to try and get parity and fairness as between the reserved tribunals, because these disparities are not simply between devolved and reserved tribunals, but within our own tribunals [Correction: 'but within each']. That piece of work, which I think has been ongoing for several years, has proved really challenging, and the senior president of tribunals for the reserved tribunals is now trying to bring that to a head, and we have begun—the judicial leads here have begun—trying to identify the current terms and conditions so far as pay for these items is concerned across our own tribunals, with a view then to engaging with the Welsh Government as to how to make them more fair.

Sorry, Chair—can I ask you to write to us on this matter, please? It strikes me as an important issue that we need to address here as well, and I think I'd prefer to hear from you in writing so you can give a more considered, longer view, if you like, of those disparities and the reasons for them, and also how you believe they should be or could be addressed, so that the committee can then take that forward. To do that in writing might be the best way.

I'm very, very happy to. Until the decision on the pay rates was announced last month, that was my main concern, because, as I say, it's just so stark. But I'd be very pleased to write to the committee.

I'm grateful to you for that. Can we just conclude, just from my own thinking, about this issue around the competition for places and recruitment? We've had a conversation now about where we are in terms of fees and pay and those sorts of issues, and I'm content with that. In terms of testing the market, ensuring that there is a pipeline, if you like, of people available to fulfil these roles, are you content that that pipeline is healthy, that you can look into the future knowing that there are people who are at the moment becoming ready to make these applications? Are you content with that, or do you feel that there is potentially a problem today, but certainly a problem tomorrow?

I think that there's no single answer across all our jurisdictions and across all our different judicial office holders. Some of our judicial office holders, for example, medical members in mental health—and mental health is, as you know from the report, by far our biggest tribunal, whatever criteria you take—a lot of our medical members also work in mental health in England under the Health, Education and Social Care Chamber, under the First-tier Tribunal, and therefore we have to be as attractive as HESC, firstly to ensure that those members sit in Wales as opposed to England, or as well as England, and also to attract new medical members when we have a competition.

I think I'm right in saying that, to date, competitions have not been problematic. We've always managed to get the number of people that we want, whether that's in a single-post competition, for example, for the president of a tribunal, or in competitions for various categories of members. But it's something we'd need to keep a constant eye on, I think, in the future, to make sure, particularly in respect of individuals who want to sit in Wales, that we are as attractive as the reserved tribunals in Wales and we are as attractive as the reserved tribunals in England, where there's a parallel jurisdiction.

Okay. I'm grateful. Thank you.

Thank you very much. The budget for the Welsh Tribunals had overspends over the last two years—more than £220,000 in 2022-23 and over £860,000 in 2023-24. What factors have led to this overspend and how do you intend to address this in the coming year?

A very good question. Unfortunately, there's not one factor [Correction: 'not a single factor'] that has led to the spend of the tribunals being over the budget, but one significant factor is general inflation, particularly inflation in terms of pay and pension payments, and that inflation has not been reflected in the budget, although it's obviously been reflected in the actual spend. One further element is the change from COVID when all of our hearings were online—a relatively cheap way of doing justice—to more back to face to face, which are more expensive. And also, in some tribunals—not so much, I don't think, mental health—in some of our smaller tribunals, although the number of cases has remained constant, the cases have tended to be more complex because they're sophisticated regimes in which the easier legal issues have now been resolved, and we've been left with a smaller number of more challenging cases—more time required for preparation hearing and writing up. 

But we're not complacent about the figures. Two points on that: firstly, we are more engaged—I am more engaged than my predecessor was with the executive Government about budgeting and about expenditure because, quite properly, the Welsh Tribunals, public institutions, should be accountable—ultimately, of course, to the Welsh people—but we should be put to task to justify our expenditure or limit our expenditure, one or the other. That, at the moment, is quite difficult constitutionally because of this rather odd constitutional position we are in. It'll be much easier under the proposed reforms, because they include the setting up of an executive body, independent of the executive Government, that will run tribunals, which will produce an annual report, will have an annual budget, and will be far more transparent and accountable than things are now. It will be much more straightforward to do those things under the reformed system. But, in the meantime, the Welsh Tribunals unit and I are dealing with the Welsh Government to make sure, quite rightly, that our expenditure is justified and we are accountable for it.

Okay. Thank you. You did talk about online being a lot cheaper. How many of your tribunals are currently being held online, and how do you decide which ones to hold online and which ones to hold in person? 

That's a really good question. It's not an easy question to answer, but it's a really good question. Looking at mental health, simply because in terms of numbers that's by far the greatest proportion of our work, about one third of our cases are online, two thirds face to face, and that is through patient choice. So, the patient chooses whether they want an online hearing or a face-to-face hearing. There is a difference in those proportions between Wales on the one hand, and England and Scotland on the other hand, where the proportions are more or less reversed. So, a much higher proportion in those jurisdictions is online, and we're investigating that. One reason, I think, is because the nature of the work is different. For example, there are no hyper-secure facilities in Wales, as there are in England, and all of those, because of the dangerousness of the patients, are held online. So, all of those are in England; none in Wales. But we are looking at whether patient choice is properly reflected in the proportion of hearings that are online.

It's nice to go with patient choice, but is it informed or uninformed patient choice? A lot of people, when given the option, 'Can I see you in person or can I see you online?' normally say, 'In person', as we discover all the time when people want to speak to us, but a lot of the time it's just as easy and more efficient to see them online.

I agree, and particularly in some jurisdictions, in, for example, school cases, school admission appeals, school exclusion appeals—I know that they are not under our umbrella at the moment, but, certainly, in England, where I've got some experience of them—parents always want online hearings. They want to be able to conduct their hearings from their kitchen without going to another place.

In mental health, in Wales there is a default position. If the individual, or their legal representatives in practice, do not tick the online or face-to-face box—they don't tick either—the default position is a face-to-face hearing, and we're looking at that to see whether that truly reflects the patient's wishes. And I think you're right—just leaving mental health aside for one moment—there has been a change in judicial thinking, particularly since COVID, but over the last 10 years, from a position where the general judicial view was that hearings, particularly hearings involving evidence, could only be properly dealt with face to face, to a position now that a lot of those hearings—not necessarily all of them—can properly and justly be dealt with online. And there are jurisdictions in England now that have a very firm default of online hearings, without increasing the number of challenges or without increasing the number of complaints from the applicants. So, again, we move from pre COVID, when pretty well all hearings were face to face, to COVID and no hearings face to face, and now we've come into the post-COVID era. Each jurisdiction is working out the best way of dealing with its applications or appeals and, in particular, how best to use modern technology, with the experience that we have of our own jurisdictions, and we're still working that out.

Okay. I'm sure you'll come back and tell us how you've got on some time in the future.

We will. I will.

Do you believe the Welsh tribunals have the resources and support they need to ensure cases are disposed of speedily, efficiently and justly?

I think I've largely covered that, but only because I think the real answer is 'no', because I think there's this disparity between budget and actual expenditure. But that is something that we are currently working on, so that our future estimates that we've given to the executive properly reflect, accurately reflect, our likely future expenditure.

If you were to change just the one thing, if people don't tick either 'in person' or 'online', and instead of defaulting to 'in person', you defaulted to 'online', would that make substantial savings?

The answer is 'probably yes'.

I don't want to try and do your job, so apologies if you think I am, but the possibility of somebody who hasn't ticked those two boxes, to go back to them and say, 'Do you have a preference between online and in person?' when they haven't ticked those, and if the answer's 'no', to do it online may well be an opportunity to make some savings.

The answer is 'yes', but we've started to do some work on exactly that issue, to see the real savings that might be made from changing the default. And the early data—and they are early data, I think only on the basis of a month or two of MH hearings—is that the savings would be, unfortunately, low. But that is something that we are looking at, because I think it's a legitimate issue for us to consider.

Thank you very much. Luke.

Diolch, Cadeirydd. If I can stick with the Welsh language and its use within tribunals, as the president of Welsh Tribunals, how do you ensure that hearings can be held in the language of an applicant's choice?

Superficially, this is quite straightforward. I think, underneath, it is not straightforward. What we've always done, and we've redrafted the questions from April of this year, is that, in the application form, there are boxes to tick as to whether you want to communicate with the tribunal and/or have the hearing in Welsh, English, or both. And so that is the choice of the applicant. And we certainly have the resources in terms of staff and in terms of judicial office holders to enable those who want to want to speak Welsh, either administratively or in hearings, to do so. But, underneath that simple answer, there is a long history of very, very low rates of Welsh speaking in all courts and in all tribunals in Wales, reserved or devolved. Incredibly low rates. The rates for last year are set out in the report. The figures for the five months to August reflect those figures—in something like 12 cases out of 900 cases did the applicants indicate that they wanted to speak some Welsh at some part of the procedure. And that, as you all know, is far below the use of rates in general life in Wales, but also far below the use of Welsh in public life in Wales, which is a lower rate.

And although we all think we might know why that is, for example, as I've said in the report, there's this reluctance to use Welsh in formal situations, including in legal proceedings, I'm very anxious to enable those who want to speak Welsh to speak it, and particularly people who want to use Welsh, perhaps with English, during a hearing—use both languages—to be able to use either language whenever they want in a hearing. And, as I say, we have the facilities to do that. From April, we've added a question to the application form that asks those people who speak Welsh but have chosen to speak English, to use the English language, in the proceedings, why there is that difference. 

If you don't mind my coming in here, Luke, I speak as someone who speaks Welsh every day, speaks it to friends and family, who rarely speaks it in the Chamber, rarely speaks it here. 

And I struggle with complicated items in Welsh. My wife, who is a first-language Welsh speaker, would definitely do hers through English, because people feel more comfortable in dealing with professional matters. And that has a lot to do with history, which we don't really want to go into, with English being the language of the courts, but I think that it's about actually getting people to be confident enough. Again, I'm not trying to do your job, so apologies if you think I am, but offering people the opportunity to use some Welsh, that it would be mainly in English, but if you feel happier to deal with one part of it in Welsh you can, might get more people taking part. But there is a fundamental belief, isn't there, and it goes back hundreds of years, that the language of the courts is English, and it's going to take a very long time for that to change.

Chair, with respect, I agree entirely with that, and it's trying to ensure that applicants, or appellants, the individuals who come before our tribunals, feel comfortable in using either language during a hearing in front of a truly bilingual panel—which we can provide; that’s not a problem—and it’s getting them to have that comfort, and we are trying to get some data from our question that supports that.

But, certainly, I think, as a result of this work, we will be focusing on how we can give people the confidence to say, ‘I want to use some Welsh,’ and we can accommodate that. It’s not simply—. It’s obviously a Welsh language issue, but it’s not simply a Welsh language issue; those people who want to give evidence in Welsh because that’s their first language, leaving aside technical terms, it may frustrate justice if they’re not allowed or don’t use Welsh for those parts of the evidence that they will give best in their own language.

Thank you. Sorry, Luke.

No, it was just using the Chair’s prerogative. Mike has picked up on what I was going to go on to, in terms of collecting data to understand why applicants might choose to either do their cases in either English or Welsh. This is also a problem, isn't it, of the actual members of the tribunal as well, because I'm looking at some survey data here. So, I’d argue there is some data to actually indicate some of the points that Mike was making, where, of the 236 members of Welsh tribunals, 60 of them can speak Welsh, but only 43 of them actually indicated that they would conduct, or be comfortable in conducting, a tribunal in Welsh without translators. So, there’s not just a problem in terms of the applicants, there’s a potential problem, of course, with those who are conducting the tribunals themselves. So, I suppose the point is: how do we get around that?

You’re right, but I think our focus is of course on the applicants. We want the applicants to feel comfortable that the panel in front of them are truly bilingual.

In terms of the numbers of judicial office holders we have, we can provide a bilingual panel, a truly bilingual panel, in all our jurisdictions except, as I understand it, one, which is in the agricultural land tribunal in land drainage cases. It’s a small jurisdiction but obviously important for those applicants who apply to it. And so we’re looking at trying to fill that gap.

Second, there are now courses run by the Judicial College, to which often we are invited to send judicial office holder members. They are at various levels, but I know, because I’ve spoken to those involved in the Judicial College in this, that they’re going to try and put on courses in the future that are specialised in jurisdictions to enable the panel to be able to conduct even quite technical issues through the medium of Welsh. So, we are hoping that that proportion of judicial office holders who are confident enough to run an entire hearing in Welsh will increase.

And in all of the competitions that we’ve had in the last 12 months for categories of members, in each, we have had Welsh-speaking members appointed.

So, looking at the situation as it currently stands, what would your thoughts be, then, on the impact to access to justice for individuals of the whole issues that we see around the Welsh language in the tribunals?

I think, as I mentioned, the adverse impact on access to justice comes from individuals who would best present their case—evidence or submissions, actually, but would best present their case—in the Welsh language, or largely in the Welsh language, who for whatever reason are minded to tick the English box when it comes to the application form and proceed to present their case in English. And where they are more comfortable in speaking Welsh, they will present their best case in Welsh, and I think that’s the access to justice concern.

Great.

But that's not just about access to justice, is it? We have lots of forms you can fill in either in English or Welsh. About one in five of the Welsh population identify as Welsh speakers; the proportion filling the Welsh version in is under 5 per cent. So, it's not just you, it's anything that is technical and legal.

Or formal. Yes. Yes, it is.

How do you ensure that members of the Welsh tribunals are able to access the training and support they need?

That's a real challenge, because the Judicial College only services reserved tribunals and, obviously, the courts. Consequently, although we have a good relationship with the Judicial College, they will not train our judicial office holders unless on a particular course there are spare places after the reserved tribunal judiciary have made their applications, and that is in very, very few instances. One instance, over the last couple of years, has been in those courses that are put on to enable judicial office holders to improve their Welsh to conduct proceedings in Welsh, and we have sent our judicial office holders to that course.

The Judicial College are willing to give us access to their materials, which is helpful, and they are willing to give us observer status on courses so that we can send our judicial office holders to a course and they can then come back and train our own members. But training our members, particularly in mental health, properly, is a real issue without having our own equivalent of a Judicial College. Of course, we simply do not have the numbers to enable that to happen. I would like to have another go at trying to persuade those who need persuading that the Judicial College should extend their scope to cover devolved tribunals, but, otherwise, we do the best we can with our own resources, including, as I say, resources that we bring in from the Judicial College by sending observers or in terms of written materials.

Okay, thank you very much. I've got no further questions, but it would be remiss of me not to do two things. One is thank you for coming along and giving evidence to us today, and, secondly, is there anything that you'd like to tell us, the question we didn't ask that you feel you'd like to give the answer to?

First, on the first part of that, as I say, I welcome the opportunity to engage with the committee, and if the committee has any further questions for me or any matters that they think I could assist on, I'd only be too happy to help. I think you've covered the main areas in my report and the main areas of my role. I don't think you've missed any difficult question that I would have asked if I'd been on the committee. Thank you very much.

Thank you very much, thank you both for coming along, and we are very grateful. You'll get a copy of the transcript. I would urge you to read the transcript, because, if you're anything like me, I tend to move away from the microphone every now and again, and the odd word, or the end of a word, sometimes gets missed, so I would go through the transcript just to see if any bits of words or words have been missed.

It will be done. I'm used to going through transcripts, and, you're right, bits are missed out sometimes.

As you've probably seen, I tend to move around, and, when I get further from the microphone, they don't necessarily pick up all the words. 

No.

Thank you. Thank you very much.

Thank you, all. Thank you.

Diolch yn fawr iawn.

Diolch yn fawr.

I then move on to, in accordance with Standing Order 17.42, invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree? Yes. Okay. Thank you.