Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

22/11/2021

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

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

Y rhai eraill a oedd yn bresennol

Others in Attendance

Rt. Hon. Lord Thomas of Cwmgiedd Cyn-gadeirydd y Comisiwn ar Gyfiawnder yng Nghymru
Former Chair of the Commission on Justice in Wales

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Aled Evans Cynghorydd Cyfreithiol
Legal Adviser
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Lucy Valsamidis Ymchwilydd
Researcher
P Gareth Williams Clerc
Clerk
Sarah Sargent Ail Glerc
Second Clerk
Stephen Davies Cynghorydd Cyfreithiol
Legal Adviser

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

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

Cyfarfu’r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 13:30.

The committee met by video-conference.

The meeting began at 13:30. 

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

Prynhawn da a chroeso ichi i gyd.

Good afternoon, everyone, and welcome.

Welcome, everybody, to this virtual meeting of the Legislation, Justice and Constitution Committee. The meeting today is being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual. Now, apart from our usual procedural adaptations for conducting these proceedings remotely, all other Standing Order requirements remain in place. We have no apologies for today's meeting; we have a full complement of committee members, and we also have Lord Thomas with us as well. Delighted to see you, and we'll introduce the session with you in a moment, Lord Thomas. But first of all, just some housekeeping arrangements, to remind everybody to keep their mobile devices to silent; we have full translation facilities this afternoon available; and, of course, the sound operator is controlling your microphones, so no need to push any buttons to unmute or mute yourselves.

2. Adroddiad y Comisiwn ar Gyfiawnder yng Nghymru: Sesiwn dystiolaeth gyda'r Arglwydd Thomas
2. The Commission on Justice in Wales report: Evidence session with Lord Thomas

And with that, we will go straight to our substantive part of this afternoon's session, which is the evidence session on the Commission on Justice in Wales report with Lord Thomas, who, as I say, we're really delighted has taken time to be with us. We've got probably an hour with you, Lord Thomas, and we're keen to go where you want to take us as well. We've got some questions that we'd like to ask, but we’re really interested in your take on a range of issues where we currently are. So, let me begin, really, with the most broad and obvious of opening questions, which might allow you to range wide a little bit. I wonder if you could just reflect a little bit on the progress against the commission’s work on justice in Wales; where you see us now, if any progress has been made; and also what your take is on the big issues, perhaps after the commission, frankly, right now, that you can see from your privileged position in the Lords as well, that are affecting justice within Wales.

Rt. Hon. Lord Thomas of Cwmgiedd 13:32:16

I think I would say that, obviously, the biggest effect of matters since we reported has been the pandemic and, to a lesser extent, Brexit. But can I concentrate on the pandemic, because that’s had the bigger effect on justice?

First of all, I think there is no doubt that it’s brought the workings of the justice system in Wales with the Government in Wales much closer together, and given the public a much better understanding that there is a difference in the law between England and Wales. And that is a continuing reminder. And I think nothing could show more the difference between the law of England and the law of Wales than the way legislation was handled during the pandemic. But I think also it has engendered a very good working relationship between the various agencies concerned with justice in Wales and the courts. I think you will want to come to some of those in some detail.

And secondly, I think it has shown the importance of the separation of powers. One of the curiosities of the way that legislation was passed in the pandemic—and I think Wales did better here than England—is distinguishing between strict law and what is called 'guidance'. You know, the law was very clear as to what you were allowed to do, where you were allowed to go, but it didn’t specify what might be reasonable, and that was contained in guidance. And I think that Wales did better than that in England.

And thirdly, I think that also it showed the importance that the police must act operationally independently, and they must make their own decisions, because the relationship between the police and the public is really something you can't afford to fracture, and I think allowing them to interpret and give their take on it, independent of any political views, was probably very important.

So, I think Brexit has been less important, though, obviously, from a constitutional point of view, later, no doubt, the frameworks will be very important.

So, that’s the first comment that I would make. 

The second comment I would make is I do think that it really is important now to build on what has happened, and I think there are three things I would say. First of all, it’s very important that Wales has an institutional infrastructure for justice. I think that the work that's been done to put the tribunals on a proper footing and to bring them closer together and amalgamate things into them is helping to create a nascent justice institution. Because you need to build one, so it's much easier to transfer the courts when—and I think it's 'when' rather than 'if'—they are transferred.

Secondly, I do think that the one thing that would be useful to develop are various all-Wales bodies, particularly an all-Wales criminal justice board and an all-Wales family justice board. These are very important, because both crime and family issues are very important in Wales.

And the third, and I think that this is important, is that there is much closer co-ordination, particularly with regard to issues to which I've referred, between what I would call the rest of Government, particularly health and education, and justice. We, I think, said in our report that justice was, from the English Government's point of view, a sort of island that floated around without any close co-ordination, and I think that bringing these institutions particularly closer together, so you have an operating system.

The second thing that I will say very briefly is that Wales has got to show it can deliver better than England, and no doubt over the pandemic there's some evidence that that has happened.

And thirdly, I think that much more needs to continue to be done to use the economic advantages of law. I mean, it may surprise many that, across the world, certainly in areas of commercial law, the lawyers have had one of their best years ever. It is noticeable in London and noticeable in New York and other cities, and I think the economic advantages need to be underscored. And those are the three things I would look to the future to concentrate on, those three.

But one final observation is that there is, going through the House of Lords at the moment—it's been through the Commons, but it'll no doubt go back there, because there are so many things the Government itself has added to the Bill—the Police, Crime, Sentencing and Courts Bill, and it struck me, listening to the debates on that, that there are so many things that it would actually be easier and better to achieve if justice had been devolved in Wales, particularly now that it's more accepted in Whitehall that health and education go much more closely with preventing crime, dealing with some of the many issues that arise, but also areas such as cautions, where you need a consistent policy across an area. There are many areas where I think it would have been much better if justice had been devolved, but that's a longer term observation rather than something immediate, which the other three points I made were debated to.

13:35

Well, those observations are fascinating. Just in the first few minutes of this, I think this is the equivalent of a rugby test match, starting off with two or three tries being scored in the first few minutes. We'll follow up on some of those points when we go to colleagues. But, before I pass on from my opening questions, recognising that we're going to return to some of those points that you've raised, which give us a lot of thought, could I just ask for your reflections on the responses from various stakeholders, not just within Government—the Welsh Government and the UK Government—but various stakeholders to the original commission recommendations? The good and the critical, the ones who raised not only in terms of devolution, but the ones who have said, 'Well, this is problematic in certain areas.' Now a little time has gone past—as you say, the devolution one, we've sort of had an answer to, so this might be a longer term project—are there any other aspects that you'd want to share with us of your reflections on stakeholders' views?

Rt. Hon. Lord Thomas of Cwmgiedd 13:39:10

I think that the one area where there is still enormous concern is in family justice, and no doubt we can return to that. But I think that the one encouraging thing is that I think people do appreciate that dealing with the problems of criminal justice does involve a more joined-up approach. Some take the view that long sentences are necessary. I don't—it's something I really don't want to get into, but I do think there is a common view that you need to bring things, as I've mentioned, much closer together.

I think, as regards one other area where I think there is a real problem, and that is the increasing complexity of the devolution settlement, it's got much worse rather than better, and I'm not—. It's part of a whole trend that makes the legislation of our country almost impossible for the ordinary person to understand. And I think, as regards the devolution arrangements, how the ordinary person—I'm going to say how any of us—actually understand whose responsibility something is has become almost a task in itself to fathom.

13:40

Okay. Well, thank you very much. Alun, you wanted to come in on that, and then we'll go to Rhys. Thank you.

I agree very much with the analysis that Lord Thomas is putting forward there, and I think it plays into some of the conversations we've been having over the last few weeks on the increased use of legislative consent motions, where legislation for Wales is increasingly being made in an unscrutinised cross-border fashion and without the clarity that would come from a different approach. But in terms of that closeness of working, if you like, Lord Thomas, one of the things—. When I took responsibility for justice policy in Wales, I have to say I was shocked—shocked to my core—how poorly the system was working, and it seemed to benefit virtually nobody. I felt great distress at what I saw in terms of people being treated by the criminal justice system in Wales. Have you seen any movement since the commission published its report in terms of a recognition that there needs to be fundamental change? Have you seen that from either the United Kingdom Government or the Welsh Government? Have you seen any work from today's Ministers in terms of trying to address some of those fundamental and structural issues that you described?

Rt. Hon. Lord Thomas of Cwmgiedd 13:41:57

It is, I think, difficult to point to anything in particular. I think there is an appreciation that some things can be done better, and one or two steps are slowly being taken. But the difficulty with the criminal justice system is that the effect of COVID-19 has been really quite significant, not so much in the magistrates' courts, but in the Crown Courts, in causing backlogs. And I think that necessarily has hampered a more radical relook at what is happening. That's one thing I would say. And the second I think is that there is a view of penal policy at the moment that it should be fairly harsh in some respects. I think, in some of the shorter sentences, maybe there is a more what I would call enlightened view that short sentences, although they have to be used, aren't generally advantageous to anyone. There are major things that need putting right in the criminal justice system, but it's going to take time until we can shake the backlog of COVID off, and that is proving much more intractable in many parts of England than it is elsewhere. 

Thank you, Lord Thomas. Rhys, we'll go over to you, please.

Diolch yn fawr, Gadeirydd. Lord Thomas, the first question I wanted to ask was: what discussions have you had with Welsh Government following the publication of your report, and as we go out of COVID, have you been in discussions with them about what areas and what recommendations they want to implement?

Rt. Hon. Lord Thomas of Cwmgiedd 13:43:42

To a limited extent, yes. I am slightly of the view that when you report on something, it's not necessarily our job to go and tell them, 'Well, why haven't you done this, why haven't you done that?' One's presented one's report, and out of respect for the democratic institution—they could have turned around and said, 'Well, we don't agree with any of this, we're not going to do it'—in fact, the opposite was the reaction. I think that there is whole-scale appreciation.

I think there are three fundamental problems. One is COVID. Undoubtedly, this has strained the system very extensively. Secondly, I don't believe—but this is a political matter—that there is much sign of any movement towards looking at justice in Wales in a way in which it should be looked at as part of the rest of the devolved Government, and it is hung onto as something separate, both by the Home Office and by the Ministry of Justice. But thirdly, I think the Welsh Government is now beginning to move on doing things, and I've had discussions from time to time, in the course of discussions on other matters, and I'm glad to see there is progress. 

I think the only thing I would say is that I would say that, of course, there should be more progress, but I'm very understanding of the huge strain I was giving by way of an example. Your committee seems to do what it requires three committees to do in the House of Lords. You do common frameworks; we have a separate committee for that. You do constitution; we have a separate committee for that. You do criminal justice; we have a separate committee for that. I think one has to appreciate the overload that is now falling on both you and the Welsh Government itself in implementing and carrying forward quite significant areas of policy.

13:45

Thank you. I'd like to move on, later on, to the scrutiny role of the Senedd, but before I move there, I just want to discuss briefly the accountability of Welsh Government. You said in your report quite clearly that there was a lack of leadership and accountability within Welsh Government. Now, justice is still covered across departments, and it's not clear who is accountable for the huge amount of justice spend—38 per cent spend within the Welsh justice system coming from Welsh Government or local authorities. From your perspective, looking in, do you think leadership and accountability have improved within Welsh Government since your report was published?

Rt. Hon. Lord Thomas of Cwmgiedd 13:46:31

Yes, in that there is now an accepted sub-committee of the Counsel General, the Minister for Social Justice and the First Minister; they have a committee that is meant to look at this. I think my view would be that the ideal solution is to have a unified post. The division in London between the Home Office and the Ministry of Justice is an accident of history, and it doesn't serve England well. But, in Wales, I think that, at the moment, in a transitional provision, you do need to make certain that the system operates as a whole. For example, as I understand it, the police primarily liaise with the Minister for Social Justice, and that's why, I think, having a structure such as an all-Wales criminal justice board would make things institutionally better, because, personally, my experience is if you have strong institutions, they actually are the underpinning force. So, I would hope there would be movement to the creation of an all-Wales criminal justice board. You could do it now; you don't need anything other than the agreement of the people to work, and that would bring together both the actors and the Ministers. How they were accountable to you, through the two Ministers, seems to me to work, but it may not be, in the end, the ideal solution.

Thank you very much. Now, one recommendation that was taken up fairly quickly was to bring justice into this committee. As you mentioned, this committee has a huge remit, but we do try to cover as many justice issues as possible. We had an excellent witness session with Sir Wyn Williams on the Wales tribunal system earlier this month. I'm interested in what you say about the institutional infrastructure, because I think, with the Welsh Tribunals unit, we have infrastructure in place, and, in my view, one of the strongest arguments to devolve justice in Wales is if we do well what we have devolved already. But how can we, within our limited scope—I know the Chair is also chairing a special committee on Senedd reform and we probably don't want to go too much down that route today—and within our limited capacity scrutinise justice even better?

Rt. Hon. Lord Thomas of Cwmgiedd 13:49:19

To my mind, the key components of the justice system involve a degree of liaison with the judiciary. I think it really is a matter for the lord chief justice to decide how best that is done under the current set-up. Secondly, to my mind, liaison with the police is critical. They play a much more important part in the justice system than is appreciated. For example, if the new proposal on cautions goes through, the police will have a much more clearly defined role covering a significant area of sentencing policy. And then it seems to me that the other area where you need to be sure that it's working properly is the Crown Prosecution Service. And it seems to me that going to the people who have operational responsibility—and I'm sure they will come and tell you that they are actually doing well and that, in fact, because Wales is a small country and they co-ordinate, things are better than they are in England—. But I do think that your scrutiny does require you to see the police—and whether you see a lead chief constable or all four of them—and the CPS, and I think also it would be helpful to see the person responsible for probation and prisons in Wales, because so much of that co-ordinates with health and education policy. And it's bringing these things together and trying to take advantage of Wales's relatively small size and its lack of a vast metropolis to see if you can mould the workings of the bodies together to produce a coherent policy that is designed for the needs of Wales, rather than the needs of a much bigger country with very different potential problems. 

13:50

Thank you, Lord Thomas. You mentioned the judiciary and, in your report, you saw a crucial role for the judiciary to lead these boards and to assist with the justice system in Wales. You mentioned us liaising with the lord chief justice. Is that the best way, then, to improve the relationship between this committee, between Welsh Government and the judiciary in Wales?

Rt. Hon. Lord Thomas of Cwmgiedd 13:51:51

Well, as you know, since about 2008, the Lord Chief Justice of England and Wales has given evidence both to the House of Commons select committee and to the House of Lords select committee—one is the Justice Committee, the other the Constitution Committee. And it has worked essentially so that the questions follow on from his annual report on justice in England and Wales. Now, all I would say is, whether he would want to do it himself or whether he would feel it would be better if one of the presiding judges came, and how you organise the session, I'm not going to comment. That must be entirely a matter for him. 

Thank you very much. My final question for now, Lord Thomas, is on another recommendation that has been implemented, the establishment of the Law Council of Wales. And, with the assistance of the Law Society in providing the secretariat, they've held their first meeting. What's your hope for the Law Council of Wales? How do you see it working? How do you see us making sure it doesn't turn into another talking shop, another Welsh committee?

Rt. Hon. Lord Thomas of Cwmgiedd 13:53:09

One thing that obviously is of concern is you keep a body to a small size, and it may be in due course they decide they need a small executive. You need an inclusive body to bring everyone to the table, but to get things done, a committee of a small number, such as no doubt your excellent committee, having only four people, is able to get things done. But, to my mind, the areas that were suggested in the report—for example co-ordinating the approach of the universities so that they had a co-ordinated approach to the much narrower subject of teaching Welsh law, a much narrower subject than is available elsewhere; the provision to help solicitors in rural areas, where there is a real need, and in post-industrial areas, for help not only in how you run a practice, but in modernisation and using IT; and in areas such as looking at the overall development of law as part of the economy of Wales—that's where I see the council being so valuable. And I think, as long as it has a clear remit—and I've every confidence in its chairman in ensuring things are done; he is very active and is known for getting things done—I would hope it would make progress.  

Thank you, Rhys. Thank you very much, Lord Thomas. We're going to go off in a slightly different direction now. Alun's going to take us down the route of access to justice, which is a key issue for us as well. But, Alun, you're free to go wherever you want, obviously, as well.

13:55

I'm grateful to you. Thank you for that. Can I start somewhere else? I'm taking advantage of your invitation.

Rt. Hon. Lord Thomas of Cwmgiedd 13:55:11

Yes.

I enjoyed reading the commission's report, and, when I gave evidence to you, Lord Thomas, I tried to focus on some of the structural issues that were creating real conflicts within the system of governance. And one of your recommendations is on the role of the judiciary in advising Government or speaking with Government or playing a role in advising legislators prior to legislation, and speaking to legislators prior to legislation about the nature of proposed Bills. I was interested in that, because, as a Minister, you're focused on policy outcomes; how you do it is not something that focuses Ministers' minds. I'd be interested to understand how you would see that role for the judiciary playing out in terms of the overall processes of legislation, because I think one of the issues we need to address is how we legislate in Wales. I've got real concerns about that at the moment.

Rt. Hon. Lord Thomas of Cwmgiedd 13:56:25

Can I just give you two examples? The first certainly doesn't apply because you have no powers, but one of the really difficult areas to get technically right is sentencing legislation, and when the Conservative Government came to power in 2010, there were many ideas such as min/max—minimum and maximum sentences. That was one example, and we had discussions with the officials about, 'Well, that's what you want to do, this is the way you can do it, that's what you've got to do,' and pointed out the kind of things that were needed to make the legislation work, and that was the 2012 Criminal Justice Act and on the whole it has been quite successful. It hasn't caused many problems. In great contrast was the 2003 Act, as we're still living years later with the dreadful problem of imprisonment for public protection, and, for various reasons that I needn't go into, there was really no discussion between the Home Office and the judiciary about this new sentence, and, to an extent thereafter, there's been a bit of blame by the politicians, saying, 'Well, this was all the judges' fault in the way they developed the legislation,' and the judges saying, 'No, this was all the fault of the legislation, which wasn't properly thought through.' And what I would see is that it is very, very important in what are quite technical areas of law, such as sentencing.

Now if you translate to family justice, again, it's very important, in the way family justice is approached, that judges must never express views on whether the sentences should be this length or that length. That's a matter for politicians. But how you do it—the technical work on it—is of critical importance, because you have to have legislation that works, and that's where I see the role of the judges. It was done in this country throughout the nineteenth century and it's common in most countries—for example, on the continent, the conseil d'état in various continental countries actually advises the government on legislation, on its practicalities, not its policies. I think that, in general terms in the UK, we have always done the same, sometimes more successfully than others.

Thank you for that. That's absolutely fascinating. Coming back to a point of departure with Huw, the next series of recommendations after that—recommendation 23, I think—has a series of suggestions for the improvement of access to justice and you've brought these together under the section that is entitled 'Immediate action to be taken', and I wonder if you could outline to us whether you believe that the Welsh Government particularly, but the Ministry of Justice as well, has acted with the urgency that you were speaking about in terms of taking forward some of these recommendations.

Rt. Hon. Lord Thomas of Cwmgiedd 13:59:55

Here, I think that action has obviously been delayed by the COVID pandemic, but the result of the pandemic has made certain action much more urgent. One of the really difficult areas that people are now beginning to appreciate is the risk of eviction, and legal aid is not available save when you get to the point of possession. I don't know the extent of the problem in Wales, but there is bound to be a significant problem with people who have significant arrears of rent that they can't pay. And here advice is critical, because ending up with only legal advice at the last moment means that almost certainly the eviction will take place. But it's bringing together debt counselling services and making certain that the legal rights are protected, and so in that area it's critical. Employment doesn't seem to have produced such a problem, but housing is critical in Wales, and there is no legal aid, and so I just take that as an example where I really do regard it as urgent that something is to be done. I think the London Government has essentially turned its back on providing legal aid here, but I do hope that the Welsh Government will do much more to help in this respect.

As regards some of the other things we mentioned, I'm very glad that I understand that, in family justice for example, they are going to look at a drug and alcohol court, which is critical, and I understand that may be announced in the very near future. But in crime, for example, a problem-solving court in a city like Merthyr, or many of the other areas, would be essential. So, I do think this goes to the area of bringing together what I regard as the social issues behind justice and the criminal issues behind justice. This is why they're both sides of the same coin, and here co-operation with the Ministry of Justice and the Home Office is so important in trying to make certain that there's a proper infrastructure so people's problems can be dealt with other than by them losing their homes or going to prison.

14:00

I'm grateful to you for that. In answer to a number of our questions this afternoon you've referred to the impact of the pandemic, and clearly it has dominated not just questions of justice but dominated questions of policy in our lives over a period of nearly two years. In the lessons learned from the pandemic—I'm not just thinking about the impact it's had on administrative issues and the rest of it, but looking more at the lessons that were potentially learned—where do you think the important issues are in terms of your report and in terms of looking at the recommendations you made prior to the pandemic? Are there any of those recommendations you would rework today, thinking of the experience of the last two years?

Rt. Hon. Lord Thomas of Cwmgiedd 14:03:25

No, I don't think so. I would merely say that, as I said at the outset, it really does seem to me that we need to build on what has been achieved in better co-ordination. Secondly, I do think that, on the whole, the way in which Welsh legislation has been drafted has been better than that drafted in Westminster. And I think we need to be sure that the police retain their full operational independence. I think the police have done very well in Wales in relation to the pandemic.  So, the pandemic I don't think would cause me to change—. My other commissioners might have a different view, but I don't see any need to change anything.

Thank you, Alun. We haven't forgotten about Peter, don't worry. But Rhys, we're going to come back to you first of all. 

Diolch, Gadeirydd. Following on from Alun's question, really, about the impact of COVID, I wanted to deal briefly with the impact of COVID on the legal sector. You mentioned that some of the large commercial firms have had an excellent year financially, but I imagine that COVID has had a huge impact on a lot of these one-man-band high-street firms in Wales. What's your analysis of the impact COVID has had on the legal sector in Wales—firstly, perhaps the smaller firms, and then the middling to larger firms in Wales? 

14:05
Rt. Hon. Lord Thomas of Cwmgiedd 14:05:19

Those that have done well over the pandemic are those who have spent money on modernisation, digitalisation and the provision of an office structure where you could work in contact with anywhere in the world to do all your work, and that requested investment. And it was obvious that before we went into the pandemic, this was not something that a large number of practices in rural and post-industrial Wales had got to. What I understand to be the position is that some firms have just found they couldn't cope, because they hadn't got the necessary infrastructure investment, and that's true of some of the courts. I'm president of the Qatar international court. We have there a superbly modern court infrastructure. The pandemic has made no difference whatsoever to the way in which we deal with cases. You can file online, you can do anything online. But that hasn't been the case in some parts of the UK. And if you look, what is required is large investment, and I think to help practices in rural Wales and post-industrial Wales, there has got to be the necessary thinking through of how you restructure the legal profession, so it can invest for the future.     

Since your commission was published, Lord Thomas, do you think the Welsh Government has taken the legal sector in Wales more seriously, and the economic benefit of the legal sector in Wales, and what more could they do? 

Rt. Hon. Lord Thomas of Cwmgiedd 14:07:01

I think there are three things I would say. First of all, I do think that progress has been made in setting up the Law Council of Wales and working with the Law Society in trying to help in this area of enabling the smaller, medium-sized firms to modernise. Secondly, there is no doubt that digitalisation and all the electronic area has moved forward at a pace that would have been unimaginable two years ago, and it does require investment, it does require keeping on top of things. We are never going to go back to the old way of doing things. That is a pretty much global view; from talking to judges across the world, that is the view. You will need to do it in some areas, such as jury trials, probably, but in a lot of commercial, family and other work, you can do quite a lot of it in a completely different way. And thirdly, as that is the way forward, and as one of the really important tasks is technological development, then I do hope that more progress will be made to establishing a proper south Wales legal hub, built on this forward-looking way in which, for example, Northern Ireland, as we set out in the report, has done. 

Thank you for that, Lord Thomas. I'm just interested in what you said about Qatar. It ties into our evidence from Sir Wyn a few weeks ago, where some issues were raised about how remote hearings have caused difficulty with regard to access to justice. There's incredible potential with regard to remote hearings to enhance access to justice. How can we make sure that remote hearings, in fact, enhance access to justice, make it even more accessible, rather than more difficult and hindering access to justice? 

Rt. Hon. Lord Thomas of Cwmgiedd 14:09:04

You need to use the very best technology, but it's not cheap. You need to have someone to help people. For example, in Qatar, we have a team of two who do nothing but look after and assist with the electronic delivery, so if there's a problem during a hearing, there's someone there who could solve it. IT does not come cheap, and it doesn't come as an excuse for cutting the number of employees. It needs deploying them differently. And therefore, you've got to have someone to assist litigants who don't have lawyers, but it can be done, and as long as you use easy-to-understand technology. For example, what we're using today works well, and it's relatively easy to understand. But sometimes there is a view that you don't need quite to spend the right amount of money on it. But we can't go back; that I have no doubt about.

14:10

That's a fascinating observation there, Lord Thomas, that we can't go back. We are now on a path here, without a doubt. But could I turn to something else there? That is, the stated Welsh Government aim of promoting the accessibility and understanding of Welsh law, and quite what you think is happening at the moment, not just through the pandemic, as you've touched on already, but generally in where the legislation is being created, how it is being scrutinised, how it's being developed. How is the Welsh Government, do you think, getting on with that overall objective—very clear objective—of improving and promoting the accessibility and understanding of Welsh law?

Rt. Hon. Lord Thomas of Cwmgiedd 14:11:08

I think that this area may be tested soon in the context of climate change. I think what is very important, if you take these climate change goals—. And forgive me if I haven't got precisely the responsibilities of the Welsh Government under the environment legislation and the London Government under the environment legislation correct. But if you look at what's been happening on the continent, the courts on the continent have held the Governments to account for their implementation of climate change. This is not an excursion of judges into politics; it is simply saying, 'Well, this is what the legislation says you've got to do, or what the legislation requires you to do; have you done it?' I think that what I would see as important for accessibility, if you take climate change as one of the great issues of the day, is that the legislation is very clear that it's not aspirational; it doesn't tell people, 'motherhood and apple pie', but it has clear, definable goals that can be enforced. To my mind, one of the problems with the future generations Act is that it is not specific and tight enough. It doesn't hold politicians sufficiently—their nose or their feet—to the wheel. 

Secondly, I think, in the area of housing legislation, I'm delighted that the Welsh housing legislation is at last coming into force. I hope that it will work. We can't tell yet, but it seems much better. It's a Law Commission proposal. But those are two areas where, outside the pandemic, law matters to the individual, and it's a question of making certain that the law works. I think, in climate change, in that sort of future generations stuff, the law is not very good in Wales. It's not tough enough. It doesn't set out clearly enforceable obligations or mechanisms for enforcement. On housing, I hope it will work. It was drafted by the Law Commission. But you just need to keep an eye that it does work.

The first one of those two examples, two quite contrasting examples that you mentioned—. One of them, of course, touches on the departure from the European Union, and the adjustments that have to be made in a legal and a constitutional framework, then, for accommodating things like law and environmental governance, let alone the detail of things like how you deal with chemicals and so on, or pesticides. What is your take at the moment, as you see this process, which is still ongoing, as we try to reinterpret law for the United Kingdom setting, outside of the discussions on common frameworks here, but actually the legislation we've already seen coming through—the environment Act within the UK Parliament, for example? Does that help or does that hinder the understanding and the clarity around the law in Wales?

Rt. Hon. Lord Thomas of Cwmgiedd 14:14:39

I think the problem is that the whole of the devolution settlement was premised on our membership of the European Union, and now that that superstructure has been taken away, I don't think enough thought was given to what should have been put in its place. I think it's as yet too early to tell whether the legislation that we've now got, much of it put through quickly, much of it not in primary legislation but in subordinate legislation—. I think it's too early to tell whether we're going to have problems or not. I hope not, but I wouldn't like to hazard a guess at this stage.

14:15

So, if you were to sum up, Lord Thomas, the current progress or otherwise of Welsh Government on accessibility for Welsh law, promoting that clarity, that coherence, that understanding, where would you say we're at at the moment? Would you say that the mist has to clear a little bit with some of the welter, I have to say, of legislation that is currently coming through at a UK, England-and-Wales basis in terms of legislative consent motions and other adjustments in law? Do we have to wait a little while to see?

Rt. Hon. Lord Thomas of Cwmgiedd 14:15:59

I think so. My feeling is that no-one has quite got their head around the immense complexity of what we're doing, and instead of going back and saying, 'Well, we had a devolution settlement that was structured to work on this understanding; we now have to move it to a different understanding', I'm not sure we've thought it through enough. And also I don't think you can leave common frameworks out of this, because they're part of trying to solve the problem. My worry is that we will end up with a system that is too complicated for people to understand, and I think that is a real, real risk and it's very—. Once you have a legal system where you don't understand where the responsibilities are, it is very damaging to good governance. Whether we will get there—. Whether we will get to such a state, I'm not sure, but the pace at which legislation is being churned out, the interrelationship between the constituent nations of the UK and the sort of soft law of common frameworks points to us going in the direction of ever-increasing complexity and thus making democratic accountability much more difficult.

Thank you. Okay. We'll stop there, or pause there at least, on that subject area, and, Peter, over to you now. Thank you.

Thank you, Huw. Lovely to meet you, Lord Thomas. Forgive me if you have already covered many points that I'm likely to ask, but it's been very fascinating, and, as a new Member to the Senedd only a few months ago, I've been dropped in the deep end to try to understand many areas of the complexities of this place. And this introduction to the justice system in a deeper way has been really enlightening. So, thank you for that.

I was going to come back to criminal justice and accountability and oversight, and I just wondered if you had any further comments on whether oversight of and accountability in the criminal justice system has improved any.

Rt. Hon. Lord Thomas of Cwmgiedd 14:18:29

It is a—. Getting—. There are two kinds of accountability. The principal means of accountability is understanding, making people explain what they're doing, and I'm not sure that we have got right yet, either across England and Wales as a whole or in Wales, the structure that explains. That's why I think an all-Wales criminal justice board and an all-Wales family justice board, taking the two areas that are most vital to individuals. Because then you could ask them what they were doing to put things right and probe. For example, I had a look at the figures on one of the areas that I was never a specialist in, but which came to concern me greatly, and that was the children being looked after, or taken into care. And although it appears that the rate of new people being taken into care is slowing down, and maybe reducing, the number of people in care has continued to rise. And therefore, some public—. As this is the responsibility of local authorities—and I understand the horrible pressures they're under—there being someone who looks at family justice across Wales, can see why are certain areas not doing as well as others—. And the research that has been done to date, I think, shows that poverty or relative deprivation is not the answer, completely. That is a factor, but it’s one of many. And I therefore think that being able to—. Because family justice, I think, really ought to worry everyone, because of the evidence that has been shown that, if you are taken into care, the prospects of you having a much more difficult life ahead are considerably enhanced, with damage to yourself and to society. Therefore, holding people to account—. And I think it’s much better if this is done publicly, rather than being done just by the Welsh Government looking at it. I think there is some value in bringing people in front of you, because there’s nothing like the whites of your eyes to encourage people to explain what they’ve been doing.

And similarly, if you had a criminal justice—. Wales is doing better; for example, I think, in Swansea and in north Wales, the backlog is much better—it's much lower—than it was before the COVID epidemic began, and the magistrates' courts have done very well. But, again, where courts haven’t done so well, getting someone from the all-Wales criminal justice board—because it’s not the responsibility, necessarily, of the courts or the police; it’s a joint responsibility—I think getting them to come and explain to you what they’re doing, what the problems are, I think helps them and helps you.

Sorry, it’s rather a long answer, but getting people in front of you, asking them questions like you’re asking me, is, I think, a way to ensure things run better.

14:20

Thank you for that, and I’ve got a few points later on about family law, but I’ll follow my order at the moment. I just wondered if the all-Wales criminal justice board is providing effective leadership and accountability. Still on that theme, really—trying to flesh out where we need to see improvement.

Rt. Hon. Lord Thomas of Cwmgiedd 14:22:22

I think, again—. There was an England-and-Wales criminal justice board, but it was far too big. In Wales, I find, when doing things, and having looked after Wales and having looked after England, you can see this—or England and Wales—that in Wales you can put around a table everyone who matters and therefore you can find out what is going wrong. That, in England, is impossible, and I think, therefore, having a body where you can get the chairman and deputy chairman—whether it be a policeman or whether it be a prosecutor, I don’t think much matters, but what does matter is that you get someone to come and tell you what they’re up to and why there are problems.   

Yes. Thank you for that. I wondered: is it still your view that Welsh Government lacks a coherent strategy on policing? I know we talked about the strength of policing earlier, through the pandemic, certainly, in Wales, but would you feel that that position still remains your position? And if it is, how could we address that?

Rt. Hon. Lord Thomas of Cwmgiedd 14:23:39

The Welsh Government, I think, puts, and has continued to put, a significant amount of money into policing. But the question always with policing—and this is not an operational issue; it’s a policy issue—is: where do you set the priorities, and are you setting the priorities for the Welsh police force properly? It seems to me that whether you take the priority as dealing with knife crime, or whether you take as a priority the investigation of fraud—I just take those as two completely different examples—then it's—. Or how you deal with drugs—do you look at this as a health matter or do you look at it more as a criminal justice matter? I do think that what is important is you have a published, coherent strategy, because each of those things—drugs; fraud—a lot of the problems arise in the banks. And knife crime, which is often a youth problem. It's much better to—and an education problem—make certain you have coherence across Wales as to the policies you want to pursue. That's what I really mean. It is a—. And the difference between Wales and England is that you can do it much more easily in a small place than in a big place.

14:25

Yes. Thanks for that. That was really helpful. If I could move on to a couple of questions around offenders then, I just wondered if you've got any comments on if you feel there'd been any progress towards developing that integrated approach that we need to offender management in Wales.

Rt. Hon. Lord Thomas of Cwmgiedd 14:25:29

I don't think I can comment on that. The only really important progress that has been made is it looks very much as if there is now going to be a women's residential centre—a women's offender residential centre—in Wales, which is critical. Sending Welsh women off to prison in England was bad for them and bad for their families, so I hope that is something that can be solved. What progress has been made on youth justice, I'm afraid I don't know.

No, that's fair enough. But if we could come back to family justice, because I know you've got some very strong perspectives and views on that—quite rightly. And so if we could consider whether oversight and accountability in the family justice system have improved any here.

Rt. Hon. Lord Thomas of Cwmgiedd 14:26:18

Until you can have—. And I don't think some of my judicial colleagues will necessarily like what I'm going to say, but it's very easy in the family justice system for the judges to take the view, 'Well, this is all the responsibility of the local authority', and the local authority to say—and we heard this when we were given evidence—'No, no, no, no, things would be much better if we had a more co-ordinated approach.' That's one point.

Secondly, there are undoubtedly very significant differences between the performances of some parts of Wales and the performance of others, which are unrelated to poverty or deprivation, and I think having someone who can take a public overall view and bring this out into the open is essential, and I don't think we've moved down that road far enough yet. I don't know the extent to which further research has been carried out. Because what you need to understand in this area is modern research. If you go back to criminal justice for a minute, one of the things we're very bad at in criminal justice is understanding the huge advances that have been made in the understanding of cognitive abilities and the science of the mind. And I think, in family justice, we don't know enough yet as to why certain areas are not as good as other areas. But I think it would be wrong to say, 'Well, borough X is awful'; I think it's much better to look at this at an all-Wales approach and try and get a co-operative and engendered spirit in trying to deal with what are very serious problems.

Yes. So, in that context, would you feel that the family justice network in Wales is providing the leadership we need?

Rt. Hon. Lord Thomas of Cwmgiedd 14:28:15

I think it needs to be more—. The family liaison judge in Wales—the division liaison judge in Wales—is very good. I think it needs much more public visibility. You need privacy for the dealings of individual children, but the public needs to understand much more and there needs to be more public accountability as to the progress being made in dealing with this very serious problem of taking children into care.

Yes. Thanks. And my last point on this area: how effectively do you believe the Welsh Government, public services and the judiciary are liaising together to improve outcomes for children in the family justice system?

Rt. Hon. Lord Thomas of Cwmgiedd 14:29:05

I think progress has been made; what's difficult to find is visible public evidence of that progress. And the one visible public element is the move to a family—you know, this pilot that's to be run under the south-east Wales criminal justice board. But the projected number of cases is tiny, and I do think that bringing to people's attention the very substantial sums of money that are spent, but, more seriously, the effect on people's lives—I think this needs to be brought out into the open, so that you can hold people to account for progress. And it is a joint judicial/local authority responsibility. There are some judges who say, 'Well, we just decide things that come in front of us.' I regard that as a nonsensical approach to family justice. You have to look on this as the judge playing a key role in trying to reverse the tide that has occurred. 

14:30

Thank you, Lord Thomas, and thank you, Huw. That's me done.

Rt. Hon. Lord Thomas of Cwmgiedd 14:30:17

Well, it's been very nice to meet you, Mr Fox.

Peter, thank you very much indeed. I think Peter undersells himself. We all learn from each other on this committee as we go through the—.

Rt. Hon. Lord Thomas of Cwmgiedd 14:30:30

I'm quite used to farmers who say, 'I know nothing about anything', but they know much more than the rest of us. [Laughter.]

Yes, indeed. Yes, indeed. Lord Thomas, thank you very much. What's good about this evidence session today is, as well as getting your take on a range of issues that are relevant to this committee, I think you've also probably pointed us towards some directions that we might want to take further inquiries on as well, not just in the months ahead but possibly in the years ahead as well, and that is always good. That's the best type of evidence session: something that queues up for us areas we should go deeper into. We do want to, as you know, focus very much not purely on the constitutional and legislative aspects, but on the justice aspects as well. So, we need to find a way to do this as this committee, and I think you've helped us today significantly. So, Lord Thomas, as always, thank you very much for your evidence. We'll send you the transcript so you can check through. I just want to give you an opportunity, is there anything that we haven't covered that you want to flag with us? We're over time by a couple of minutes.

Rt. Hon. Lord Thomas of Cwmgiedd 14:31:39

I think there is one thing that I think will certainly—I haven't said much about it, which is civil justice. I do think that the—. I very much hope that progress will be made in giving Wales a proper civil court centre. There isn't one. The Cardiff Civil Justice Centre is, shall I say, substandard; others could apply a much more accurate adjective to it. And I think what is important, if you're developing Wales, you do need a proper civil court, and I hope that will happen, because a lot of—. For example, one of the first recommendations you put in place was to ensure that administrative law cases that related to Wales were dealt with in Wales, and that's been a considerable achievement, but it really does need a building that is fit for purpose. And I hope both the Welsh Government and the Ministry of Justice can work to give a capital city and a nation what it deserves in this respect.

That was worth waiting for as well. Thank you very much indeed. Lord Thomas, thank you very much. We will give you just a few minutes now to virtually leave the committee room, and then we'll continue with business. Our best wishes to you.

Rt. Hon. Lord Thomas of Cwmgiedd 14:33:04

Thank you, all, very much indeed. It's been a pleasure to attend.

So, I believe Lord Thomas has now left the virtual session.

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

We will move on now to other business in the public session that we have today, and the first item on this business—the rest of the business—is item 3 in your papers, colleagues. It's instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We have draft affirmative resolution instruments. We have a little bundle here of amendments to legislation all related to the corporate joint committees. These are the relatively new corporate bodies established via regulations made under the Local Government and Elections (Wales) Act 2021, and they consist of those principal councils, and, in some circumstances, as you can see from the items in front of us this morning, national park authorities in Wales, which are specified in the establishment regulations. Now, we've got a little pack of these. I'm just wondering, we have Gareth with us for legal advice. Gareth, do we want to take these altogether, or do you want to do them one by one?

Well, nothing to add on all of the clear reports, Chair. There's just one minor merits point on agenda item 4.1 for me to add.

In which case, if I could ask all colleagues if they're happy to confirm that, in terms of items 3.1, 3.2, 3.3, this series, and 3.4 and 3.5—I believe that is it, no, sorry, 3.6, 3.7 and 3.8, all of which relate to the CJCs—. Are you happy to agree those reports or do you have any comments on them? Are you happy to agree? Excellent, thank you very much. Thank you, Gareth.

14:35
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

So, we will then move on to item No. 4, which is the instruments that do raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. Now, the first of these, under item 4.1, is SL(6)077, the Welsh Language Standards (No.1) Regulations 2015 (Amendment) Regulations 2021. The original regulations of 2015 specified Welsh language standards in relation to the conduct of Welsh Ministers, county council and county borough councils and national park authorities. This instrument amends the 2015 regulations to bring CJCs within the scope of those standards. Now, Gareth, this is the one that you've identified one reporting point on, is that right?

Diolch. Yes, it's a relatively minor point, but the explanatory note at the beginning of the regulations suggests that a stand-alone regulatory impact assessment was carried out for these regulations, but the explanatory memorandum, which is a separate document, explains there was no stand-alone RIA for these regulations. There was a detailed regulatory impact assessment carried out when corporate joint committees were established in the first place earlier this year, of course. As I said, it's a relatively minor point, and the draft report does not require the Welsh Government to respond if Members are content with that approach.

On that basis, I think we are content. I can see everybody nodding assent to that, so thank you, Gareth.

5. Papurau i’w nodi
5. Papers to note

We'll move on to item No. 5, which is papers to note. Several of these we can return to in private session, but first of all, we have item 5.1, correspondence from the First Minister in respect of the British-Irish Council summit in Wales, which took place last week. So, if you're happy to note that, and we are.

Item 5.2: correspondence from the Deputy Minister for Social Partnership in respect of the Welsh Government response to the committee's report on the legislative consent memoranda on the Armed Forces Bill. So, we have a letter there of 19 November, and just to note that the LCM for this Bill is to be debated in tomorrow's Plenary. Are we happy to note that? We are, thank you.

6. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
6. 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.

In which case, we can move to item No. 6, motion under Standing Order 17.42 to move into private and to exclude the public from the remainder of the meeting. Are you happy that we now move into private session? We are, and we'll move into private session and just wait for official confirmation that we are in private.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:38.

Motion agreed.

The public part of the meeting ended at 14:38.