National Assembly for Wales

Back to Search

Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

13/07/2020

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Carwyn Jones MS
Dai Lloyd MS
Mick Antoniw MS Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies MS

Y rhai eraill a oedd yn bresennol

Others in Attendance

Rhian Davies-Rees Pennaeth Tribiwnlysoedd Cymru
Head of Welsh Tribunals
Sir Wyn Williams Llywydd Tribiwnlysoedd Cymru
President of Welsh Tribunals

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
Nia Moss Ymchwilydd
Researcher
P Gareth Williams Clerc
Clerk
Rhiannon Lewis Cynghorydd Cyfreithiol
Legal Adviser
Sarah Sargent Ail Glerc
Second Clerk

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

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

Cyfarfu'r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 09:30.

The committee met by video-conference.

The meeting began at 09:30. 

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introduction, apologies, substitutions and declarations of interest

I welcome Members to this week's virtual meeting of the Legislation, Justice and Constitution Committee. In accordance with Standing Order 34.19, I've determined that the public are excluded from the committee's meeting in order to protect public health. In accordance with Standing Order 34.21, notice of this decision was included in the agenda for this meeting published last Thursday. This meeting is, however, being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual. So, aside from the procedural adaptation relating to conducting proceedings remotely, all other Standing Order requirements for committees remain in place.

We have a full committee, so no apologies are necessary. Can I just ask the Members if there are any declarations of interest? I don't see that there are any. 

Just a few housekeeping arrangements: Members are to ensure that mobile devices are switched to silent; Senedd Cymru operates through the media of both the Welsh and English languages, and interpretation is available during this morning's meeting. Members are reminded that the sound operator is controlling the microphones, and as such, you do not need to mute and unmute yourselves during the public meeting.

2. Gwneud i Gyfiawnder Weithio yng Nghymru: Sesiwn dystiolaeth 1
2. Making Justice Work in Wales: Evidence session 1

I'll move straight on to item 2 of our agenda on making justice work in Wales. There are a number of documents that are before Members: the letter from the president of Welsh Tribunals, and the first and second annual reports of the president of tribunals. I welcome Sir Wyn Williams, president of Welsh Tribunals, and Rhian Davies-Rees, head of Welsh Tribunals, to this meeting.

Can I just say before we kick off that this is a historic meeting in many ways? Because it is the first ever parliamentary scrutiny of those parts of the justice system that are the responsibility of the Senedd, of the Welsh Parliament—I did a little check earlier on on Wikipedia—going back to the laws of Hywel Dda, which I know the Member Dai Lloyd would like me to refer to, 'dda' referring to 'good', and the reading is as follows:

'The latter part of his name (Dda, lit. “Good”) refers to the fact that his laws were just and good. The historian Dafydd Jenkins sees in them compassion rather than punishment, plenty of common sense and recognition of the rights of women. Hywel Dda was a well-educated man even by modern standards, having a good knowledge of Welsh, Latin, and English.'

So I thought maybe that would be the precursor to us starting this particular session. I very much welcome Wyn and Rhian to these proceedings—the first, obviously, of many.

Can I start, Wyn, by just asking you for perhaps an outline of how you see your role and your responsibilities, and your reflections on your first year or so as the first president of Welsh Tribunals, and how you see the tribunals having changed over the last couple of years, and how you see things developing over the future?

First of all, can I thank you for the opportunity of giving evidence to this committee? I should say that I volunteered myself in my last meeting with the First Minister, during a discussion we were having about the structural independence of Welsh tribunals, and I volunteered the fact that me being held accountable by giving evidence to this committee would facilitate the independence of the tribunals. So, I wanted to make that clear: that although I'm apprehensive of the process, I very much welcome the opportunity to provide evidence to the committee about matters relevant to my role.

To start answering your question, as you probably know, I was reasonably instrumental in guiding the then Lord Chief Justice as to whether there was indeed the need for a role of president of Welsh Tribunals. I was then a serving High Court judge and, effectively, he asked me to look into the possibility of creating this role. And it soon struck me that there was a need for a role, really for two principal reasons: one, because each of the tribunals appeared to need to be operating properly and efficiently within their own sphere, but without really having much relationship to each other, and that didn't seem to me to be a very good thing. Secondly, there was a need for a clear point of contact between the tribunals themselves and the administration that supported them. And although I am sure that there were good relations between the judicial leads of the tribunals and the administration, it is so much easier to have one obvious focal point, namely the president. 

So, with that in mind, I thought this is a role that is necessary, so what should be the main features of the role as I then saw it? And I really was starting from scratch and, I confess, without having thought a great deal about it until I was actually involved in it. My thinking about the role has really transformed itself with my own experience of it. At the beginning, I thought it very important to become this link between the administration and the judicial leads and to provide a focus for the judicial leads in their work.

Over time, I began to wonder whether or not I forgot a basic point for a judge: what is the judicial role of the president of Welsh Tribunals, because that was never defined in the Wales Act 2017? Indeed, it's not obvious that there's a judicial role at all if you just look at the statutory provisions. But, clearly, for it to be a meaningful role in terms of its overall impact on the justice system in Wales, there needs, I think, to be a clearly defined judicial role for the president. Those of you who read my second report will know that I had a number of things to say about that in the course of reporting. 

I think that covers in general terms what I see in terms of the role. Of course, depending upon how the work of the tribunals expands in the future, then the president's role may also expand very significantly along with the increased workload. So, there are all those issues, I think, to be addressed as we move forward. 

As far as reflections on what's happened so far are concerned, I must say I've thoroughly enjoyed; that's the first thing to say. I believe I have extremely good working relations with the Welsh Tribunals unit, who support me to the hilt. I believe I have good relations with all the judicial leads, and I think we have got to the point where we have the ability to discuss things with each other very openly and very honestly, which can only be to the benefit of the workings of the tribunals. I may be deluding myself, but I've been a judge for quite a long time so I think I've probably got that bit right. I do think those features are real features in the system. 

Is that a sufficient answer to question No. 1? 

09:35

I think it's a very helpful opening and introduction and, of course, there will be questions on a whole series of aspects relating to the report. But just another question from me. How would you see your priorities over the next year or two? What are the most important things that you want to see achieved? 

I have been giving that significant thought, and I think there are two, and, again, I think they're highlighted in my report. One is to make the role of president of Welsh Tribunals much easier for the public to understand, much more specific so that there's no doubt that he or she is a judge, as well as a kind of administrator. So, I would like to think that, working with the Law Commission, we can devise—well, just a much wider job description, to give it that title, than the Wales Act currently confers. So, that's priority No. 1. 

Priority No. 2 is the structure of the Welsh Tribunals unit. If there has been a failure on my part, in the last couple of years, it has been a failure to more vigorously promote the idea that we should be getting on with structural reform of the Welsh Tribunals unit. About two or three weeks ago, Rhian and I met with Chris Warner—her immediate boss—and Chris's boss, whose name escapes me momentarily, and I said, to both Chris Warner and his boss, that I would be seeking to promote the notion that the structure of the Welsh Tribunals unit should be finalised sooner rather than later. There's approximately a year to go before my period of office expires, and if I can make a significant contribution to taking forward both those things, then I think I will retire reasonably happy, if that's what occurs. 

09:40

I'm sure we all want to see you retire reasonably happy in 12 months' time, Wyn. Can I go over to Suzy Davies, please? Suzy. 

Good morning. 

You've explained to us that you see this as a role that evolved from something that was originally conceived and that your priority is getting the tribunals unit into a different sort of shape. What sort of conversations do you think that you'll need with the Law Commission to make that happen? Can this happen independently of that? 

Well, this is an interesting point, because, on the face of it—. I stand to be contradicted by more learned constitutional lawyers, but, on the face of it, the Senedd does have control of this, because I do believe that the Senedd has the ability to pass legislation in relation to the Welsh Tribunals unit, so that many of the complications that arise because of the relationship between the UK Parliament and the Senedd do not necessarily arise in relation to the reform of the structure of the Welsh Tribunals unit. That means, of course, that the Welsh Government and the Senedd can look at the models that exist in other parts of the UK or, for that matter, any other part of the world, with a completely open mind as to what structure best suits Wales. As you will know, from my report, there are different models within the UK, so that Scotland has a body corporate to control the delivery of justice in Scotland; in Northern Ireland and England, they are agencies of the ministries of justice of those respective countries.

When I wrote my first report, I favoured creating an agency-type situation, because, putting it simply, I thought that it might be easier to achieve in the shorter term than the model that Scotland has adopted. Since time has gone by, I'm wondering—and I use the word 'wondering' advisedly because obviously there's a political element to this, as well as an administration of justice element—whether or not Wales should be considering seriously the Scottish model. When I spoke to the First Minister in July of last year, he certainly seemed interested in exploring that. I'm not seeking to commit him, in any way, because it was an open-ended discussion with no conclusions drawn. But, obviously, the Scottish model is one that I think bears close scrutiny to see whether or not it would suit Wales's needs. 

09:45

Thank you. I suppose one of the difficulties with an agency model would be to strictly identify which department it was an agency of, rather than being generally a Welsh Government agency.

Yes, well, I follow that, and I think, obviously, England is so much bigger than Wales that it's sometimes difficult to think of the English structures working in Wales. Northern Ireland, which does have an agency, is more comparable in terms of size. So, I know that the Welsh Tribunals unit has had access to the documents that create the agency in Northern Ireland, and I'm sure that we could model a system in Wales on that.

So, I think what it really needs is for a combination of constitutional lawyers within the Welsh Government, the Law Commission and the relevant politicians to sit down together—and, obviously, I'd willingly participate in discussions about this—and try and work out first and foremost which model is likely to suit Wales best. And then, having made that decision in principle, to work out the details, which I imagine would be done more easily once there is agreement about the model in principle.

Thank you. Just to finish from me, then, you've talked about this a little bit already, but even if this couldn't be done in time for your successor, what do you think is your order of priorities, apart from the two that you've just mentioned, which would arise from a complete reappraisal of your role? Just to get a sense of what you've been speaking to the Law Commission and First Minister about that.

So far, I've had discussions—I've had two meetings, I should say, with the Law Commission. The first was by way of general discussion. What happened was—there should be no secret about it—I sent them the draft, because it was in draft then, of that part of my report that dealt with the issues we've just been discussing, so that they could have an idea of how I was thinking about it. So, we had a general discussion about that. Then the last meeting we've had was more specific about things like appointments, for example, to Welsh tribunals, so we were starting to drill down on the detail. And if you are going to ask me about my priorities, in relation to other aspects of the tribunals' work, I think appointments is something that we should be looking at fairly carefully, because at the moment we have a complete mishmash, for want of a better description, whereby some members are appointed by the Lord Chancellor, some members are appointed by Welsh Ministers, and, in reality, my own view is that that is not a system that is sustainable in the long term, and that we should be giving serious consideration to having what are Welsh-specific appointments being appointed by Welsh Ministers. That's a personal view. It may not be a view that commends itself to everyone, but I do find it surprising, shall we say, that some appointments, even within the same tribunal, are made by Welsh Ministers, and some are made by the Lord Chancellor. That does seem odd to me, I have to say.

Thank you for that, Wyn. That's obviously one of the reasons for the importance of the commencement of the scrutiny sessions of our Welsh judicial system. Carwyn Jones.

Thank you, Chair. Well, of course, the appointment of the president of Welsh Tribunals is not itself a devolved appointment. I had a long discussion with the then Lord Chief Justice about this, and we came to a compromise position. But originally, of course, it would have a been the position that the Lord Chancellor would have appointed you, something that, clearly, was incongruous. Whereas in Scotland, of course, it's a First Minister's appointment. All judicial appointments are First Minister's appointment, except, of course, a formal rubber stamp after an appointments committee has looked at who should be appointed.

In terms of your relationship with the wider judiciary of England and Wales, what is that relationship like? And what improvements might be made in that relationship?

09:50

Well, actually, we have very good relations and very good structures for those relations. So, if I may, I'll spend a minute or two explaining the current system. So, first of all, there is a body called the Tribunals Judicial Executive Board. That is chaired by the senior president of tribunals of England and Wales, and, just in case there is any confusion, of course, there are three large tribunals operating in Wales that are not under my purview but they're under the purview of the senior president, because they're not within the Wales Act 2017. Anyway, Sir Ernest Ryder, until his retirement—or I think he's about to retire in September—he has chaired this body throughout my period of office. And it is a UK body: it's not England and Wales, it's Scotland and Northern Ireland as well—so, we have a senior Scottish judge, a senior Northern Irish judge, myself; the administration can provide support as well if necessary. And that meets on a quarterly basis. I must say, I've found this body invaluable for sharing good practice throughout the tribunal world in England, Wales, Scotland and Northern Ireland.

Then a similar but non-statutory body is the Administrative Justice Council. Both Rhian and I sit on that, as do our equivalents in Scotland, Northern Ireland and England, but this has upon it a number of academics, for example, Sarah Nason, who you may know of because of her work at Bangor University. She sits on this council. So, we meet, again, quarterly, and, again, there's the opportunity to share very good practice throughout the four countries of the UK, but this time supplemented with the theoretical and practical suggestions that the academics bring to the table.

So, both those bodies in my opinion function very well and are of considerable support to me in my work. And then, if I deal more quickly with the relationship with what I might call the English and Welsh judiciary—so, first of all, the Lord Chief Justice has a judges council, and there is a Welsh committee of that council. There are approximately 12 people—I haven't added them up, but approximately 12 judges—on that Welsh committee and I am one of them. So, again, that meets quarterly and I have the opportunity to discuss all matters relating to Wales, both in relation to the courts and the devolved and non-devolved tribunals, and, in fact, we're meeting this afternoon, so I'm sure they'll be interested to have a report about what's gone on this morning. So, that exists. 

Then, on a personal level, Rhian meets with her opposite number in HMCTS Wales whenever she thinks that is appropriate. I meet with the presiding judges whenever I think that is appropriate, and I have access to the judicial college and the Judicial Appointments Commission, so that I would say that I am extremely well-served by the number of bodies that exist where I can share information about the problems that may arise in Wales.

And you did ask, Carwyn, whether there was any room for improvement. I suppose there's always room for improvement in the real world. But I do think that that combination of the various committees that I attend serves us pretty well.

And then finally—and this shouldn't be underestimated—I have access to what's called eJudiciary and the judicial intranet, and so I have access to a huge amount of information that is disseminated about the justice system, and obviously I take full advantage of that. I would say that it's been a success of Rhian and I. One of the first things we did was to bring our tribunal members on to eJudiciary after I was appointed, so that all our judicial members have access to eJudiciary as well, which is obviously very significant.

09:55

Thank you for that. Could I broaden the question? Perhaps I could look at the relationship you have with the non-devolved justice bodies, using, of course, HMCTS as one example. What is the relationship like there, and, again, is there any scope for improvement?

Well, we're in the fortunate position that I know many members of HMCTS Wales personally, because I was a presiding judge in Wales. So, we started from a position of strength: we knew each other; we were able to develop good lines of communication. And the likelihood is that, under the current model of the presidency—namely, that it would be a serving High Court judge or a retired High Court judge, no doubt with an interest in Wales—the chances are that that person will have good communication links with HMCTS Wales. Now, in a sense, Carwyn, that is chance, in the sense that there's no formal—. If you like, there's no formal agreement written down between the Welsh Tribunals unit and HMCTS Wales, or no formal agreement that I meet the presiding judges on a regular basis, and perhaps, especially as the work of the tribunals may grow, there may be a need for defining such a formal relationship, but, as we currently stand, because of the personalities involved—and this is one of the advantages of Wales being quite a small place, as opposed to a disadvantage—we do know each other quite well, so that we're able to share information very easily.

Can I come back on that? You placed a heavy emphasis there on the personal relationship that you've built up over the years with various people in HMCTS, and that's helped in terms of the relationship. Would your successor be able to—? You don't know who your successor might be, of course, but would your successor be able to rely on those personal relationships in the future? Or does there need, do you think, to be a more formal process, if somebody were to be appointed who didn't have the personal relationships that you have?

I think there is an argument for saying that, moving forward, we should be seeking to at least agree a kind of a framework—I think that's the way I'd put it—as to what information is shared, how it's shared, who speaks to whom, because, obviously, it is possible that my successor won't have the personal links that I enjoyed because of my previous judicial experience. So, yes, I think there is an argument for saying that a framework might be desirable.

Can I just ask Rhian if she has a view about this? Because, obviously, she is, on a day-to-day basis, more likely to be in contact with HMCTS Wales than the president is. Do you have anything to add, Rhian?

Yes, certainly. I think what we have formed—I, myself, am a secondment originally from HMCTS, so I guess that comes as well with the benefit that I do have some relationships with staff within HMCTS Wales operationally. But I think, over the last few years, we've built a lot of relationships on a wider basis, in liaison with arrangements for judicial security, and, more recently, we've been able to work with HMCTS to, essentially, piggyback onto the contract that they had for the cloud video platform Kinly, which is a cloud video platform enabling us to do hearings online since the COVID restrictions have been put in place. So, I think that, whilst there are personal and good relationships on the judicial side, I would probably say that we ourselves have got them operationally as well within the administration. It's not just HMCTS; it's the Judicial Appointments Commission. We have a great working relationship with them and, of course, they undertake a lot of work with us under the section 83 agreement, and likewise with the Judicial Conduct Investigations Office. So, I think it is a wider, growing relationship across both judicial and administration.

Thank you for that, Rhian, and I approve of the patriotic words behind you, may I say, as well.

Diolch. [Laughter.] 

10:00

Two more questions from me, both to do with recommendations from the Thomas commission. Recommendation 25, Wyn, recommends that public bodies that make judicial or quasi-judicial decisions should be brought under the supervision of the president. Now, you may not feel comfortable giving a view as to whether that should happen, but, should it happen, how might that work on a practical level?

Well, on a practical level, this is one of the things that I've had preliminary discussions with the Law Commission about. I think you may find that one of the first documents the Law Commission produce will identify a number of bodies that might be considered appropriate to be brought under the, in inverted commas, 'supervision' of the president of Welsh Tribunals. Now, in a legal sense, that probably means adding them to the list of the bodies that we find in the 2017 Act, and, as you'll know, there's a procedure in the Act for bringing new bodies into the devolved tribunal family. So, that is the practical way in which it could happen. There are always the political considerations, which it would not be appropriate for me to comment upon, because some of these bodies are currently under the supervision of other Welsh bodies, if I can put it in that way, and there may be things to sort out between politicians in relation to those bodies. But I can see that there is scope for maybe four, five, six bodies who perform, essentially, a juridical role, who could be considered for being added to the list of devolved tribunals, and I know that the Law Commission will consider this carefully, and will also consider carefully the best practical means for bringing that about.

Okay, thank you. The final question from me, again in relation to a Thomas commission recommendation—I don't have the number of that recommendation in front of me, so apologies for that, but it's to do with dispute resolution in Wales, and how dispute resolution might be co-ordinated and promoted through a body chaired by a senior judge, and what impact that might have on Welsh tribunals. What does that mean to you in terms of what dispute resolution might look like, and, having made that interpretation, how then would it affect your work?

Well, I think there are two stages, if I can put it in that way. The first is to identify those disputes arising solely in Wales that are currently heard by the courts of England and Wales, but which might be better suited to Welsh tribunals. So, I'm sure that we could have a very fruitful discussion, for example, about whether housing disputes are better dealt with in the county court or in the residential property tribunal—that's just by way of an example. 

I think we do need to consider very carefully, going forward, how disputes about things like housing should be allocated in terms of their resolution. I may be slightly overstepping the mark here, but not by very much, so I'll say it anyway: there seems to have been a tendency in recent devolved legislation still to direct any dispute resolution to the courts of England and Wales, rather than the Welsh tribunals. I don't know why that is. I'm slightly surprised, that's all—I'll put it in that way—given that these tribunals are set up to be expert in their field, and, indeed, from my experience, our Welsh tribunals are indeed expert in their field. So, I do think there is real scope for considering, as we move forward, whenever legislation is passed in the devolved field, and whenever there's a need to provide for dispute resolution, then very serious consideration should be given to looking at the tribunals as a means for resolving the dispute. So, that's phase 1.

Then, phase 2: the senior judicial role. Now, in the Thomas commission report, there was a specific recommendation that a senior lord justice should be given a specific role for Wales. That was not confined to issues relating to Welsh tribunals; that was a recommendation that presupposed, shall we say, that a substantial amount of the justice function would be devolved to Wales. So, in the immediate future, if work were to be directed to tribunals for dispute resolution, I would still see the president of Welsh Tribunals sitting at the apex of what is going on.

If, in due course, much more substantial legislative devolution were to occur and a lord justice was appointed with a specific Welsh role over justice generally, then of course we would need to work out what the relationship was between that lord justice and the president of Welsh Tribunals. And I think, unless devolution occurs extremely rapidly, one could reasonably and confidently predict that, as the work of the president of Welsh Tribunals grew because the tribunals themselves were growing, careful attention would be given to how then the president would sit with a very senior lord justice who had overall supervision of the justice system.

10:05

I'll be very, very quick. It's interesting, because one way of doing that, of course, would be to specify on the face of the Bill which tribunal would act as the adjudicator in any dispute, suggesting then—I don't know what the competence issues are here off the top of my head, but suggesting that all disputes would have to be settled in that tribunal, unless of course there was a procedural unfairness which the superior courts would have to deal with. That's an interesting possibility. That's it.

Diolch yn fawr, Gadeirydd. Allaf i yn gyntaf longyfarch Wyn am ddisgrifio'r tirwedd mewn modd bendigedig y bore yma? Mae gyda fi gwpwl o gwestiynau ychydig bach yn fwy technegol efallai, ac yn edrych ymlaen, ac yn benodol yn mynd ar ôl rôl y Senedd yma a Llywodraeth Cymru yn datblygu sut fydd y tribiwnlysoedd yn gweithio o hyn ymlaen. Felly, os allaf i ofyn cwestiwn bach cyntaf, yn dilyn rhan o'r pethau rydych chi wedi eu dweud, beth fyddai Llywodraeth Cymru a Thribiwnlysoedd Cymru eisiau eu blaenoriaethu wrth ddiwygio gweithdrefnau tribiwnlysoedd wrth inni symud ymlaen? Dwi'n cymryd mai beth rydych chi wedi ei ddisgrifio sy'n digwydd rŵan, ond rydyn ni'n edrych hefyd ar symud ymlaen, o ochr sut byddai Llywodraeth Cymru a'r Senedd yma yn eich helpu chi, mewn ffordd.

Thank you very much, Chair. May I first of all congratulate Wyn for describing the landscape in such a magnificent way this morning? I have a few questions that are perhaps a little bit more technical in nature, and looking to the future, particularly with regard to the role of the Senedd here and the Welsh Government in developing how the tribunals will operate from now on. So, if I could ask a first question, following some of what you've already said, what should the Welsh Government and Welsh Tribunals try to prioritise in reforming tribunal procedures as we move forward? I accept what you've described as the situation up to date, but we're also looking at moving forward, and how the Welsh Government and the Senedd here can help you, in a way.

I'm very sorry, but I seem to have been blanked off the screen, and when I pressed the English language for the translation it didn't come. So, I'm going to try and rejoin, if I may.

Dwi ddim yn gwybod—yn y cyfamser, ydy Rhian yn gallu dweud rhywbeth?

I don't know—in the meantime, can Rhian tell us anything on that question?

I think we'll just wait for Sir Wyn to come in—I guess it's for his priorities—if that's okay.

Rhian, the translation didn't work for me, can you give me the gist of it?

Would the translator like to repeat the question? That would be easier.

Fe wnaf i ofyn y cwestiwn eto, mewn ffordd fer y tro yma. O ochr Llywodraeth Cymru a'r Senedd mae'r cwpwl o gwestiynau sydd gyda fi. Dwi'n cymryd eich disgrifiad chi o beth sydd wedi digwydd i fyny at rŵan, ond beth ddylai Llywodraeth Cymru a Thribiwnlysoedd Cymru ceisio ei flaenoriaethu wrth ddiwygio gweithdrefnau tribiwnlysoedd wrth symud ymlaen?

I'll ask the question again, slightly more succinctly this time. From the point of view of the Welsh Government and the Senedd—that's what I'm focusing on. I accept what you've said about what the situation has been like to date, but what should the Welsh Government and Welsh Tribunals try to prioritise in reforming tribunal procedures in moving forward?

10:10

No, I'm still not getting the translation, I'm sorry.

Can the operator assist in any way? Do you have the English—the little American flag thing at the bottom of the screen up?

Yes, I've tried it.

And you have a little American flag there with 'English' written underneath it.

Well, it's not an American flag I've got, I'm sorry—it's an 'EN' and then 'English' underneath it.

The meeting operator is aware of the problem and he's trying to put Sir Wyn into a breakout room. The meeting operator can't speak live on broadcast.

Right, I see.

Shall I just come in for a moment?

Of course, the WTU are slightly independent, so I guess the work of the WTU and how we can prioritise—I think the first thing that needs to be recognised, I guess, is the separation of work between the Government and the tribunals. So, we have, over the last few years, worked quite hard to ensure that there is an independence of the tribunal—on each of the tribunals, if you wish—and certainly, Wyn's role in coming into that has supported that in a huge leap forward for us.

We do continue, of course, to have a challenge in respect of areas such as estates, and, as you will see from Wyn's report this year, finance is another pressure where we seem to have—it's a demand-led business, therefore, we have an increase in costs and the budget that supports that becomes a bit more difficult to manage. So, I guess the two big areas that I would like to see some support for from certainly Welsh Government and the Senedd, where possible, are around supporting the tribunals in delivering day-to-day business in ensuring that the correct budget is put forward and the correct estates are there to support hearings when we need that.

We have got good relationships with HM Courts and Tribunals Service, as we've already mentioned, and we do utilise their estates to ensure that we've got adequately set-up courtrooms in some hearings, but it doesn't suit all. So, that's something that we would value, I think, and Wyn, I'm sure, will pick up on that. So, Wyn, essentially, it's what should the Welsh Government and Welsh Tribunals prioritise, and how can the Senedd help. I guess that's the question.

I think I'm repeating myself, to a degree, but as I've said, I do regard it as a priority that we begin to address precisely the status of the Welsh Tribunals unit. I think the Senedd clearly has a role to play because, unless I am wrong, I think this could be achieved by legislation passed by the Senedd. There is no doubt that there is the potential for the WTU being seen as part of Welsh Government, which is not generally helpful in terms of showing to the outside world that the Welsh tribunals are completely independent of Welsh Government. And to the extent that any administrative back-up can be independent, then clearly the Welsh Tribunals unit should be made independent. And that is, I think, a Welsh Government and Senedd decision.

Wel, diolch yn fawr, ond na, mae'r cwestiynau a oedd gen i wedi cael eu hateb—diolch yn fawr i Rhian a Wyn am hwnna. Yn ôl i chi, Gadeirydd. Dwi'n ymwybodol o'r amser. Diolch yn fawr.

Well, thank you, but no, the questions I had have been answered—thank you very much to Rhian and Wyn for that. Back to you, Chair. I'm aware of time. Thank you.

Thank you, Chair. This is just a fairly quick and straightforward question about annual reports for yourself—

10:15

Can you speak into your mike? The sound isn't very loud. Is that—? 

Is that okay? Okay. Apologies. Yes. Just a quick question about our old friends governance and audit here, and the purpose and content of your own annual report and those of the other tribunals. I wonder if you can give us an idea about what you think they should contain in terms of being useful and who sets the rules about what should be in those reports at the moment.

My understanding is that each individual head of each tribunal is very much the person who decides what goes into the report for that tribunal, and I support that. Because, as you will appreciate, the Welsh tribunals currently—the six or seven of them—are very, very different from each other. So, it would be almost impossible, in my view, to standardise them without losing their main purpose, which is to provide information publicly, in detail, about the work of each tribunal. So, I'm comfortable with the fact that the individual judicial leads very much take the lead in what goes into their reports. Obviously they are supported by the Welsh Tribunals unit, as am I in my report.

Now, my report I see as providing an overview of the work of the tribunals, and that's, if you like—in my second report, that can be found in the first part of it, where I deal with some statistics and I report on events that have occurred during the year in the life of the tribunal. And then, the second part of my report I raise issues that I consider need proper consideration. I think there I really am addressing (a) the Members of the Senedd, (b) the Welsh Government, but (c) a wider audience, because I am aware that academics are interested in what I say my report. And I do think that, for example, that part of my report that deals with the role of the president of Welsh Tribunals and the structure of the Welsh Tribunals unit could very usefully benefit from a much wider debate than just me, the Law Commission and the Government and the Senedd. In other words, if the Welsh legal community, if I can use that wide phrase, engages with this, so much the better. So, that's my audience when I write my report.

If I might just quickly intervene on that. Of course, your first report wasn't debated in the Senedd, which is why we've brought it before this committee, together with your second report. I understand the second report is likely to be tabled for a debate in the Senedd, and you'd obviously, I presume, see that as an important step forward in widening out that debate.

Certainly. I mean, the individual reports, I think, are very, very important in understanding the details of the work those tribunals do. My report I see as a means of providing an overview, as I've said, but also stimulating debate, not just about what has been but what should be.

That pretty much covers the questions that I wanted to ask. But I am still curious—

That's okay. I am still curious about what kind of external assurances are offered to the tribunals before they prepare their annual reports. I mean, it may not be information you have to hand, I accept that, but is there a role for Audit Wales, as they now are, for example?

I'll discuss this with Rhian afterwards, if I may, outside this session, but I rather doubt whether there is much, if any, external input into what goes into those reports. But I will check that out for you. I'm not sure—and this is not something I've thought about, so I may need to revise my view—but I'm not sure that I would necessarily encourage a kind of external overview, even by me, because I think that the work of the tribunals is, as I've said, very different in each tribunal, but also one has to remember that the judicial lead, when producing a report, is still acting as a judge, and so it's very important for that person to be giving their judicial view completely independently of anything else, if I can put it in that way. And I'm not suggesting that you're suggesting the opposite. I think I'm saying it because I think that it would be very difficult to devise procedures other than those that we have that would allow the judicial leads the necessary flexibility to deal with the work of their tribunal as they see fit.

10:20

Thank you for that answer. Maybe it was better addressed to the unit itself, really, which doesn't seem to get that much coverage in the Welsh Government's own report. So, just an observation.

Forgive me, Chair, you caught me a little by surprise there, but I will—

In terms of access to justice, we've seen, of course, over the years, the slow whittling down of legal aid and the greater prevalence of litigants in person in various courts up and down Wales. Is this an issue for Welsh tribunals and what steps have been taken to mitigate the problem of litigants appearing perhaps more frequently, if that's the case, without legal representation?

Well, step by step, first of all legal aid—my understanding is that legal aid is available in the mental health review tribunal, which is, of course, our largest tribunal. So, we don't have that problem there. Legal aid, in very restricted circumstances, as I understand it, may be available in the Special Educational Needs Tribunal for Wales. Otherwise, I think we are not likely to be in a position whereby legal aid is available, certainly with any degree of frequency, in any of our tribunals.

So far as access to justice in the wider sense is concerned, this is really rather interesting, because, as you may or may not be aware, the Welsh Tribunals unit, certainly since my involvement, has only really ever had one tribunal room. When we had Southgate House, there was a tribunal room there, and there was a smaller room—so, say one and a half tribunal rooms—available in Llandrindod Wells. Currently, we have a room available in the Newport premises, but increasingly, I think, we take our cases to where the people are. So, it's much more common for Welsh tribunal cases—. I'm not talking about mental health review now, because primarily they're in hospitals, but the other tribunals tend to hire, on a one-off basis, rooms in hotels or from HMCTS Wales, for example, so that we can actually hold the hearings as close to the parties as we possibly can, which is obviously good.

I'm almost dreading to use this phrase, but one of the potentially good things to have come out of the coronavirus pandemic is that we've been forced to use other means of communication, and, by way of example, SENTW in particular has used remote hearings almost since the beginning of the pandemic, once people were appropriately trained. That, too, brings with it advantages in terms of access to justice. There may be disadvantages, and I'll come back to that in a moment, but there are advantages in the sense that if you do have a litigant in person in a SENTW case, they are likely to feel more comfortable communicating by way of a computer, but sitting in their own living room or wherever, than they may do compared with being taken off to a formal hearing, even if it is in a hotel, or whatever, that isn't set up like a formal courtroom. Nonetheless, there's a degree of formality when it's a face-to-face hearing that is not as obvious in a video hearing. So, our current feedback from SENTW in particular is that the remote hearings are working quite well and facilitating the ability of some classes of litigant to participate more easily. Now, these are very early days, Carwyn, and people may well decide that certain classes of cases do demand face-to-face hearings when that's possible. We understand that. But it may be possible for a number of preliminary hearings of procedural hearings to take place remotely that will actually make it easier for the litigants concerned.

So, access to justice has all kinds of ramifications, and it's a real problem, obviously, in those parts of the legal system that require face-to-face hearings when courts are shut or the like. But so far as our tribunals are concerned, we have very particular issues, which, touch wood, we are able to deal with reasonably well at the moment. Now, I shouldn't leave the mental health review tribunal. We are currently conducting remote hearings by telephone, which are not ideal, and nobody is suggesting they're ideal, because, after all, one is dealing with people who have mental health problems. But there is no alternative to it in the pandemic, because, as you will know, there are tight time limits in that tribunal that must be adhered to, and it's simply not practical to adjourn cases with no possibility of knowing when they might heard face to face. Now, there is a feeling that remote hearings in the mental health review tribunal are not ideal, and are not, in some ways, a proper substitute in all cases for face-to-face hearings, but I'm afraid that there's no alternative during this pandemic. 

10:25

Thank you for that. Could I ask, then, in terms of face-to-face hearings, what support is available for litigants in person?

Well, I would like to think—and Rhian may wish to add to this—but I would like to think that the members of staff of the Welsh Tribunals unit are extremely adept at pointing them in the correct direction at every important procedural stage. That is crucial, in my opinion, and I am confident that Rhian does her best to ensure that her members of staff are fully aware of the difficulties of litigants in person and are as helpful as they possibly can be when dealing with them, as they generally do, over the telephone. Once we get to the point of a hearing, whether it's a procedural hearing or the full hearing, then clearly we are dependent on the chair of the particular tribunal being astute to look after the needs of the litigant in person. Now, for most of my judicial life, this was not a problem for me, but it became a problem towards the end, and there is no doubt that any legal chair has well in mind the need to provide appropriate assistance to a litigant in person. That's easy to state; it's not so easy to bring about in practice, because litigants in person have a variety of personalities, as you will know. Some can be antagonistic, some can be very articulate. There's a huge variety, and so what it requires a great deal of flexibility—I think is the correct word—on the part of the legal chair in order to ensure, so far as possible, that the litigant in person is not disadvantaged.

I can tell you that each of our tribunals, as you would expect, has training days, and I know that in each of those training days, at reasonably regular intervals, there will be training on dealing with things that arise as a consequence of having litigants in person before the tribunal. So, we do what we can to mitigate the disadvantage that a litigant in person might feel by being a litigant in person but, ultimately, the skill of the legal chair at the hearing is paramount, and in terms of the lead-up it is vital that the Welsh Tribunals unit signposts them correctly and provides as much assistance as it reasonably can. 

10:30

Thank you for that. Finally from me in this segment, what engagement have you had with HM Courts and Tribunals Service on the courts and tribunals reform programme and, perhaps more widely, on access to justice? You may have dealt with that a little anyway in your previous question, but how are you consulted and engaged with when it comes to that process? 

On the reform programme, clearly, that is high on the agenda every time the tribunal judiciary executive board meet. So, as I've said, in those quarterly meetings we meet for approximately 2.5 hours—in 2.5 hour sessions—and I can tell you that probably in every meeting I've been to issues touching on the reform programme are discussed at length, by which I mean it will take perhaps an hour of the session. I have to say that the wider aspects of the reform programme and, in particular, the digitalisation of cases, had not struck me as being in the forefront of my priorities for Welsh Tribunals, because, as I've said, our largest tribunal is the mental health review tribunal, and it's very difficult to see what real impact the reform programme can have on face-to-face hearings that take place primarily in hospitals. 

But, of course, the pandemic has changed this a bit. I've become much more interested in remote and digitalisation since we've been forced to think about it. I'd like to think that SENTW in particular is a flagship for how this can be taken forward extremely quickly and efficiently. If I'm allowed to, I'd like to pay tribute to SENTW for the way they've adapted their procedures to deal with this in a really efficient and sensible way. And I see no reason why our two property tribunals can't follow suit. The Welsh Language Tribunal and the Adjudication Panel for Wales, of course, have a very much smaller volume of cases, so that these issues are not of primary concern in those tribunals because they will be able to devise procedures very easily to suit a particular case. But I foresee that digitalised working and remote hearings will become more of a feature of our tribunals as we go into the future, quite regardless of the pandemic, and that, of course, was at the heart of the reform programme. 

May I just ask, Wyn, before we go on, because we had reached the end of the allotted time, are you okay for a few more minutes? 

Yes, of course.

Thank you very much. Is the same okay with you, Rhian, as well? 

Yes, of course. 

I very much appreciate that. I'll go to Carwyn, then are a few more urgent questions. 

Just to help, really, Chair, I think Sir Wyn has answered to a great extent what would have been my final two questions, so just to indicate to you that I won't need to ask them. 

Okay. I've got two particular questions I'll put very succinctly. One is with regard to some evidence we've had from the Equality and Human Rights Commission in terms of data—data specifically for Wales with regard to the justice system and so on. I wonder if there are any issues there that you've been looking at or would want to address. And, secondly, the uptake of Welsh language services, from your reports, is very low. I'm just wondering if that's been looked at and why that might be. 

10:35

Well, can I deal with the Welsh language issue first? 

I'd like to tell the Members that both the Welsh Tribunals unit and the tribunals themselves are well equipped to deal with all Welsh language hearings. We have many people within the unit who are fluent in English and Welsh and so able to conduct, over the telephone, with litigants all aspects of the lead-up to hearings in the Welsh language. Similarly, we are well equipped with tribunal members who are fluent in both Welsh and English so that there will never be a difficulty in conducting hearings in Welsh. 

As to why the take-up is so low, I'm sorry, I can't provide you with an answer. In the whole of my judicial experience, so that's now going back 20 years, I know that both Her Majesty's Courts and Tribunals Service Wales and, latterly, the Welsh Tribunals unit have ensured that there are sufficient numbers of Welsh-speaking members of staff and, in the main, even in the courts and tribunals that are non-devolved, a sufficient number of Welsh speaking judges. And yet, the take-up is low in all the different court and tribunal hearings covered by both devolved and non-devolved.

It's difficult, I think, for the judiciary to provide an answer to this, because obviously our primary role is to ensure that the hearing is conducted fairly and justly and, of course, we might ask a question like, 'Would you be more comfortable having your hearing in Welsh?', or something like that. But I don't think it can be part of the judiciary's function to enter into the arena as to which language a litigant wishes to use. But I think, without wishing to sound as if I'm ducking the question, if there is to be a promotion of the greater use of the Welsh language in the justice system, that has to come from a different arm of Government than the judiciary itself.

Now, so far as data is concerned, which was the first part of your question, I confess that this is not something that I could address specifically in my role as president. Obviously, I am aware that the Welsh Tribunals unit collect data about cases and about outcomes and all the rest of it. As a result of you asking that question, if I may, I will have a discussion with Rhian about whether there is more that we should be doing, in the Welsh Tribunals unit, in relation to collecting data. And do I understand, by your question, that you are concerned about, say, for example, data about the use of the Welsh language or data about litigants in person? Or if there are any other categories that you'd like us to look into, then we would. And I will also take away from this whether this is something that we should be seeking to share with and ask HMCTS about, so that we have a much broader picture about Wales as a whole, as opposed to just the Welsh Tribunals unit. 

I think that is a point in respect of that area that we have responsibility for, which is also important to analyse how it's performing, how people are operating within it and issues to do with Welsh language, but access to justice generally. But also it is a matter that this committee has been concerned with in terms of the breakdown of specific Welsh data, rather than England and Wales data. There is some available, but I don't think it is something that is being very specifically addressed. But, obviously, with an evolving justice system within Wales, that sort of information becomes more important. So, I think that is a useful area to explore.

I'm keen to move on, but I'm also keen not to try, in terms of your time availability. If I say I'll take one more question from Suzy and from Dai Lloyd, would that be okay?

10:40

Of course, yes.

Of course. Suzy Davies, we'll go over to you, and then I'll go over to Dai Lloyd. I'm very aware of the commitment of time. Thank you very much.

Thank you, Chair, but I think my issue has been pretty much covered, which was about the collection of data of lay participants in the system.

I apologise. I've jumped in again on other people's questions. Dai Lloyd—anything else that you wish to ask now?

Jest yn gyflym iawn, achos—. Ydy'r system gyfieithu'n gweithio nawr?

Just very quickly, because—. Is the interpretation system working now?

Yes, it it. Yes.

Diolch yn fawr. Un cwestiwn byr—mae yna gwpl o faterion, ond dwi'n credu y gwnawn ni eu gadael nhw am heddiw.

Allwch chi, yn fyr, amlinellu pam mae cyfarwyddyd ymarfer y tribiwnlys adolygu iechyd meddwl yn caniatáu i'r tribiwnlys hepgor gwrandawiad pan fo paragraff 12(2) o Atodlen 8 i Ddeddf Coronafeirws 2020 y Deyrnas Unedig yn gymwys, tra bod y cyfarwyddyd ymarfer cyfatebol yn Lloegr, ynglŷn â'r tribiwnlys adolygu iechyd meddwl, yn caniatáu i'r tribiwnlys awgrymu gwrandawiad papur yn unig? Pam y gwahaniaeth—hepgor y gwrandawiad yng Nghymru, a gwrandawiad papur yn Lloegr? Fe fyddwch chi wedi clywed am y coronafeirws, sbo. Diolch.

Excellent. Thank you very much. One very brief question—there are some issues that are outstanding, but I think we'll leave them for today.

Can you briefly outline why the mental health review tribunal practice direction allows the tribunal to dispense with a hearing where paragraph 12(2) of Schedule 8 to the UK Coronavirus Act 2020 applies, when the equivalent practice direction for England, with regard to the mental health review tribunal, allows the tribunal to suggest a paper hearing alone? Why the difference—the dispensation with the hearing in Wales, and a paper hearing in England, with regard to the coronavirus. Thank you.

Well, I'd like to answer this by providing a little background into how all of this came about. You may be aware that the English rules that govern that part of the system in England that deals with mental health have diverged from the rules that apply in Wales over a number of years, so that it's commonly—. When I say 'commonly', it has been the case over some years that procedural rules operating in England are not the same as those that operate in Wales.

When the pandemic arrived and it became clear that the Welsh tribunal rules would not permit as much flexibility as the rules that operate in England, a lot of work was done, as you know, to have the Welsh rules amended to allow for that flexibility, and that was done by statutory provisions within the Coronavirus Act 2020. That proved to be very successful, because Wales now has a much greater degree of flexibility in terms of how it can deal with cases.

So far as the practice direction is concerned, I make a confession—we did not particularly pay regard to the position in England. Rather, what we did was that Carolyn Kirby, who is the president of the Mental Health Review Tribunal for Wales, and her team of deputies drafted up what they wished to see in the Welsh practice direction. They then consulted me, and I consulted the Welsh Government lawyers who now have the ability to assist the Welsh tribunals. And so it was a team effort in Wales as to what we thought would be suitable for Wales.

Although what happens in England is of course not to be ignored, and never would be ignored, if I tell you, Dr Lloyd, that the practice directions that now exist in Scotland, England and Northern Ireland are all somewhat different from each other, because they are looking at their individual needs—. As it happens, we've not had to use any of those limiting powers, and I'm very pleased to be able to tell you—and if we are going to finish, this is a good note upon which to finish—that the mental health review tribunal has never had to sit with any fewer than three persons and it has never had to invoke anything less than a proper hearing for any of its applications during the course of this pandemic. And it's dealt, in the period since the lockdown until about now, with over 500 cases. It's been battling away very well.

10:45

Well, on that positive note, I think it does bring our evidence session to an end. Can I just say, I think this has been a very important start to, really, an ongoing process of scrutiny of our justice system as it evolves and develops? So, I'd like to thank you very much, Sir Wyn Williams and Rhian Davies-Rees, for attending today, for the thoroughness of your answers, which I think are extremely interesting. You give certainly considerable ground for further thought. You will, of course, receive a transcript of the evidence in due course. Thank you for the time you've made available to this committee.

Thank you.

We now move on—. I think, if you wish, you are free now, free to go. 

3. Offerynnau nad ydynt yn codi materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3
3. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

I now move on to item 3 of the agenda: instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We have the Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) (Amendment) Regulations 2020. These regulations are made under the Town and Country Planning Act 1990. The powers enable the Welsh Ministers to make certain provision in connection with fees for planning and related applications. Are there any points, Gareth, that you wish to raise? No. Any comments or observations, Suzy, Dai or Carwyn?

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

If not, we then move on to the Local Authorities (Coronavirus) (Meetings) (Amendment) (Wales) Regulations 2020. Again, the Members have before them the report regulations, the explanatory memorandum and, indeed, a written statement. These start at pack page 59. These regulations amend the Local Authorities (Coronavirus) (Meetings) (Wales) Regulations 2020 to make further temporary provision in relation to local authority meetings during the COVID-19 pandemic. Any comments from you, Gareth?

There's just one merits point noting there's been no formal consultation on the regulations, but the Welsh Government has had, as it puts it, advisory consultations with local authorities and local government bodies. 

Okay, we note that. Any comments or observations from anyone else?

Just on this one, obviously, it's another one of these pieces of secondary legislation that's come through without any impact assessment, really, or any discussion. This one's an extension, effectively, of existing regulations; it's not something new. So, I think it's worth pointing out that, actually, maybe there was an opportunity to do a little bit more of an impact assessment on this one, bearing in mind it's not fresh out of the traps. 

Yes, and interestingly, these, actually, do amend some previous coronavirus restrictions, which previously gave local authorities particular flexibility, while some of that flexibility has now been taken away because they've decided some of these meetings that could be delayed were, as the Government say, dealing with subjects so grave that they shouldn't be given as much flexibility to defer the meetings until 1 May 2021. 

Okay. Is there anything you want to recommend on this, Suzy? Do we write and raise this point?

Not especially, it's just if this then becomes a feature of what we're looking at going forward, then perhaps we should, although I appreciate that it's the end of term and we won't get that many of these now. 

Yes, but I think it's also one of those things that goes into the pool of issues that we're collating in terms of a broader review of the process of a lot of this secondary legislation. 

We'll move on to, then, the Maintained Schools (Amendment of paragraph 7 of Schedule 17 to the Coronavirus Act 2020) (Wales) Regulations 2020. You have all the relevant papers before you. These regulations amend Schedule 17 to the Coronavirus Act 2020 to add regulations 3 and 4 of the Changing of School Session Times (Wales) Regulations 2009 to the list of enactments that can be disapplied by Welsh Ministers for a specified period by notice. Now, there are some technical and merits points. Gareth. 

10:50

There are five technical points and one merits point, starting on pack page 77. The technical points mostly raise questions around cross-references to various enactments. The Welsh Government response was received this morning, and it does not agree with those reporting points, save for one very minor correction, which can be dealt with by correction slip. We can go away and consider the Welsh Government response, if Members are content, and come back to the committee if needs be, and, if we do not come back, then it'll be taken that the Welsh Government have been correct on these points.

I think that would be helpful to do. Any other comments or observations? Suzy.

Well, again, we've got something here that, by the time it's actually formally introduced and signed off by the Assembly, has ceased to have any meaningful purpose, so it's just another one to add to the pile.

Add to the pile, but also to check those and give consideration to those specific points. [Inaudible.]—or legal disagreements in terms of the interpretation. So, if we can do that.

And we move on now to the Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 7) Regulations 2020. Again, you have all the relevant papers in front of you, including a letter from the First Minister of 3 July 2020. These regulations were made by the First Minister on Friday. Over to you, Gareth.

Yes. I think, just to note before getting to the No. 7 amendment regulations, all other previous Welsh coronavirus restrictions have now been consolidated in one set of new regulations that were made on Friday and are now fully in force. This means there will be no Plenary debate to approve the No. 6 amending regulations or these No. 7 amending regulations, because they are no longer law; they've been revoked by the new consolidated regulations. So, instead, there will be a Plenary debate just on the new, consolidated regulations. Nevertheless, these No. 7 regulations in today's papers were law between 6 July and today. If Members are content, I can still go through the reporting points on the No. 7 amending regulations, not least because they raise broader issues that could also be relevant to the new consolidated regulations.

Fine. There are four merits points, starting on pack page 94. The first merits point notes the recent High Court case—Dolan and Secretary of State—where the restrictions in England were challenged. The legal challenge was largely unsuccessful, though one ground of challenge was adjourned, and the issues that arose in that case apply broadly in the same way to the Wales restrictions and lead to a few human rights questions being included in the first merits point. The first question asks the Welsh Government which of the Wales restrictions engage article 5 of the European Convention on Human Rights, which protects a person's liberty. The second question notes how courts, including the High Court in Dolan, manage to address human rights considerations in a methodical and concise way, often in just a few paragraphs, and the draft report asks the Welsh Government whether it could take a similar approach in its explanatory memorandums, especially when legislation has a significant impact on human rights. The third question asks the Welsh Government whether it considers article 9 of the European Convention on Human Rights, which protects freedom of thought, conscience and religion—whether that article is engaged, and whether that should be referenced in the explanatory memorandum, as it is not at present.

The second merits point arises out of the letter from the Equality and Human Rights Commission that is included in today's papers under agenda item 7.1. The draft report asks the Welsh Government what steps it has taken to comply with its statutory duties to publish equality impact assessments in making and amending the various sets of coronavirus restrictions over the last four months or so.

The third merits point raises a cross-border question: the Public Health (Control of Disease) Act 1984 allows the Welsh Ministers to make these restrictions as respects Wales, and there is Welsh Government guidance that says that this new concept of extended households, where two households can act as if they are one household—the guidance says that Welsh restrictions can allow a household in Wales to form an extended household with a household in England, and the draft report asks the Welsh Government to clarify how the Wales restrictions can apply to households in England.

The fourth and final merits point notes that the Welsh Government guidance still referred to the requirement to stay at home, which has not been law in Wales since 1 June. But I see that particular guidance has since been removed, and the link in today's papers no longer works. The Welsh Government has not yet responded to these merits points.

10:55

Okay, so we're still awaiting the response. We did discuss briefly last week the equality impact assessments issue, and I think we've raised that. Any other comments or observations? Suzy Davies.

It's just to get clarification from Gareth whether this consolidated regulation will be on the agenda for Wednesday's debate, or do we have to wait for Business Committee to confirm that?

My understanding is that we will—the committee will—consider these regulations in a meeting on 3 August, and then the committee will then lay a report and I presume the regulations will be scheduled for debate when the Senedd returns for a Plenary session on 5 August.

Okay, well that means that those No. 6 regulations won't be getting any Senedd scrutiny in Plenary for some—because they will cease to exist obviously, but the content of them won't be considered by the Senedd as a whole for some considerable period of time. I think we should make a point of that.

Yes, certainly. It's certainly for a number of weeks and, of course, they are in force now, so the issue that concerns us particularly is actually the consideration that's been given to some of the human rights issues and so on, and whether or not they're incorporated properly and properly explained and properly given attention to in the explanatory memorandum and so on. Yes, Gareth.

Just to clarify, the No. 6 and the No. 7 regulations I understand will not be going before Plenary at all.

Well, you know, this seems to go into the pot of matters that we are going to be raising, and I think we will probably need to be doing an overview report on the progress, but that's not going to be able to make any progress until we get into September now, is it? Any views, Gareth, on this? Gareth, Clerk.

No. It is perhaps just an observation: the made-affirmative process means that the regulations are made, become law and then the Senedd has to approve them if they are to remain in force, but, of course, if they're revoked in between that time, that then does cause an issue.

Okay, is there anything else that we want to add on to this? No. Well, we've noted that then.

5. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 ond sydd â goblygiadau o ganlyniad i ymadawiad y DU â'r UE
5. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3 but have implications as a result of the UK exiting the EU

We move on now to the Cancellation of Student Loans for Living Costs Liability (Wales) Regulations 2020. These are the regulations that govern the student loan liability of full-time students who receive loans for living costs from the Welsh Ministers in respect of the academic year 2020-21. A number of points have been noted. We've got implications as result of the UK's exit from the European Union. Over to you, Gareth.

The draft report notes the written statement by the Minister for Education last year, saying that EU nationals who intend to study during the academic year 2020-21 in Wales will continue to receive the same financial support, regardless of exiting the EU, and that support will continue until they finish their courses.

6. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
6. Written statements under Standing Order 30C

If not, we go on to the—this is a written statement under Standing Order 30C—Regulation (EU) No. 2018/1724, the Single Digital Gateway Regulation (Revocation) (EU Exit) Regulations 2020. The Welsh Government statement provides notification that it has consented to the making of the single digital gateway regulations of 2020. The statement notes that the Welsh Government does not share the view of the UK Government in respect of legislative competence, but that consent has been given as there is no divergence between the Welsh Government and the UK Government on the policy for the correction. Are there any issues there, Gareth?

11:00

Nothing further than noting the disagreement between the two Governments as to whether this is devolved or not.

Okay, any comments, observations? If not, we move on to the Professional Qualifications and Services (Miscellaneous Provisions) (EU Exit) 2020. Again, you have the written statement and the commentary. The Welsh Government's written statement provides notification that it has consented to the making of the Professional Qualifications and Services (Miscellaneous Provisions) (EU Exit) Regulations 2020. The written statement notes that the amendments being made by the regulations correct deficiencies that arise in relevant retained EU law as a result of the UK leaving the European Union. Any points there, Gareth?

Just to say, this is an example of EU rights being replaced by rights under the withdrawal agreement. Recognised professional qualification rights that arise under EU law are being disapplied; they'll be replaced by the recognised professional qualification rights as set out in the withdrawal agreement.

Okay. Any comments or observations? If there are none, we then go on to item 7.

7. Papurau i’w nodi
7. Papers to note

First is a letter from the head of the Equality and Human Rights Commission Wales regarding the scrutiny of Welsh Government regulations and compliance with the public sector equality duty. What we're doing is formally noting the letter that we received late at the last meeting, and I can inform Members that I have written back to the EHRC following the discussion and recommendations we had at that meeting. 

So, if we move on, then, to the letter from the Chair of the Health, Social Care and Sport Committee—correspondence from the Prisons and Probation Ombudsman. Members are invited to note the letter, which draws our attention to a letter from the Prisons and Probation Ombudsman in relation to end-of-life care in prisons. Shall we defer any debate on this to private session? Okay.

On to item 7.3, which is a letter from Alex Chalk MP, Parliamentary Under-Secretary of State for Justice. This is with regard to data on access to justice. So, we're just invited to note that letter, and this is in response to the queries that we've made about seeking access to specific Welsh data and the point that we obviously raised with the president of tribunals. I think if there are any issues on that we can discuss those in private session.

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

Cynnig:

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

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

So, in accordance with Standing Order 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do the Members agree? I see there is agreement, so we now move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 11:03.

Motion agreed.

The public part of the meeting ended at 11:03.

Explore the Welsh Parliament