Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

17/01/2022

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Alun Davies MS
Darren Millar MS Yn dirprwyo ar ran Peter Fox
Substitute for Peter Fox
Huw Irranca-Davies MS Cadeirydd y Pwyllgor
Committee Chair
Rhys ab Owen MS

Y rhai eraill a oedd yn bresennol

Others in Attendance

James Gerard Dirprwy Gyfarwyddwr, Polisi Cyfiawnder, Llywodraeth Cymru
Deputy Director, Justice Policy, Welsh Government
Mick Antoniw MS Cwnsler Cyffredinol a Gweinidog y Cyfansoddiad
Counsel General and Minister for the Constitution

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Aled Evans Cynghorydd Cyfreithiol
Legal Adviser
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Jennifer Cottle Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Sarah Sargent Ail Glerc
Second Clerk

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

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

Cyfarfu’r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 13:31.

The committee met by video-conference.

The meeting began at 13:31.

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

Good afternoon. Welcome to this virtual meeting of the Legislation, Justice and Constitution Committee. This is broadcast live on Senedd.tv and the Record of Proceedings will be published as usual. And, as normal, apart from the normal procedural adaptations for conducting proceedings virtually, all other Standing Order requirements remain in place.

We have one apology for today from our colleague, Peter Fox, and he will be substituted during the course of the afternoon by Darren Millar, who will be joining us. He isn't with us yet, but we are quorate and we can get under way.

A simple housekeeping reminder to everybody to make sure that your mobile devices are switched to silent. We've got full translation facilities as per normal during the meeting and the sound operator is controlling the microphones, so you don't need to worry about muting and unmuting yourselves.

2. Sesiwn graffu gyda’r Cwnsler Cyffredinol a Gweinidog y Cyfansoddiad
2. Scrutiny session with the Counsel General and Minister for the Constitution

So, we'll head straight then into the first and substantive part of this afternoon's committee session in public, which is our scrutiny session with the Counsel General and Minister for the Constitution, Mick Antoniw MS. Delighted to have you with us once again, Counsel General. Good to have you with us. We've got with you, as well, James Gerard, your deputy director of justice policy. So, you're both very welcome indeed here to us today. Are you happy if we go straight into this session? We've got you for, I think, an hour and a quarter.

Yes, I'm happy for you to proceed straight into questions.

That's brilliant. Well, if I can just begin with a slight tangent, because the committee was very interested to see, in the last few days, that you've actually published—. You've made some announcements on the progress with the changes to the machinery of Government and inter-governmental relations. That's something we've been keeping a very close eye on. We don't want to dwell on it too much today, and I'm sure there will be a big opportunity to have a look at this and scrutinise it in more detail, but did you want to just give us any remarks on what progress has been made, just so that we're aware and we've got it on public record?

Thank you for that. I think it has been a most important review, and I think it is one that is well worth considerable scrutiny. As you know, the issue of dysfunction and relations across the four nations of the UK has been a difficult one. The background, as you'll know also, is of course that, in the past, we as a Welsh Government, and as a Senedd in fact, have called for a council of Ministers, for a disputes process, for an independent secretariat and so on, and it is around these areas that I think there has been quite a considerable amount of progress, and there have been, obviously, I think, very difficult and sensitive discussions with the four nations to get where we are. But what we have now is, I think, an agreed process for inter-governmental relations. Obviously, I think you will have seen the details of these, but I think the important thing is that, first of all, there is now the creation of, effectively, a Prime Minister and First Ministers' council or committee, which the Prime Minister will chair, but the four nations are effectively come together, really as the sort of supreme council in terms of inter-governmental relations.

There is also provision for the establishment of an inter-ministerial council. As you know, there are quite a number of inter-ministerial meetings that take place on bilateral and sometimes quadrilateral bases, so it establishes a framework for particularly where there are strategic and cross-cutting issues that arise there. Also, it, very importantly in my view, provides for an independent secretariat, and it also then provides for a disputes procedure and an independent process for disputes; that if agreement cannot be reached, a mechanism by which they will be dealt with. One has to be cautious about this, and I think this is a very significant step forward, because it is a coming together. The document talks about this inter-governmental relations process being built on principles of mutual respect, trust, respecting reserved powers, and the devolved competencies of Scotland, Wales and Northern Ireland. It talks about transparency, it talks about independent support and secretariats, which all will put into.

So, it's very early days. The proof of the pudding is always in the eating, isn't it; the devil in the detail. Those are my sayings out of the way. The crux of it is that this doesn't have a formal constitutional status; it isn't binding in that sense. But I think it is potentially a very significant step forward on providing a mechanism for which the four nations and the four Governments can actually come together in terms of the devolution settlement, the common interest and interdependencies that exist, and for the first time provide, I think, a more professional level of support and secretariat.

So, there are a number of issues around this. It talks also about how this has to be something that is subject to transparency and scrutiny in the Parliaments of the UK, which again is something that obviously this committee will be very concerned with. So, I think there's still more work to get under way in order to get this set up—where it's going to be located, how the secretariats are going to be formed and so on. So, it's early days, but I think this is a very significant constitutional step forward.

13:35

Okay, thank you. As I say, we don't want to dwell overlong on this, because we'll return our full scrutiny to this, but it is such a significant announcement, it's been long anticipated. But I think, Alun, you wanted to just explore this a little bit further.

I'm grateful to you, Chair, and grateful to you, Counsel General, for that explanation. And I agree with your conclusion—it is a very significant statement and a very significant change to existing arrangements. I think a lot of us have been very frustrated by the lack of structural relationships between the Governments of the United Kingdom. Do you know, when I first joined the Welsh Government back in 2011, the governance, if you like, took place by goodwill, largely—conversations between different Ministers and it tended to be quite unstructured, but it worked because of that goodwill. But the test of a real, strong constitution is one that works under stress and where there isn't necessarily goodwill or agreement—how does it handle conflict? Because that's where these things are really tested. And my concern would be that, without a statutory framework in place, this can be put aside. I remember the Secretary of State for Wales telling us last year that Wales would receive £375 million in European funding this year, of which £46 million turned up, and he says, 'Well, so what?' And the problem comes when promises can be put aside so easily and so lightly that it's very easy then to lose faith in these structures. So, how do you see this having teeth and ensuring that it does work, because, you know, you and I have attended British-Irish ministerial councils where Prime Ministers have simply failed to turn up, and haven't provided the sort of structure that we require in order to strengthen and deepen the relationships on these islands?

13:40

Well, you make very, very good points, and, to some extent, I don't have a definitive answer or solution to those points because they are valid points. I suppose what is interesting about the agreement, though, of course, is that there are certain independent factors built into it. The meeting of the Prime Minister and First Ministers is one that the Prime Minister can't delegate—that is, he has to be there, which we might take for granted, but is certainly something that would be a distinct advantage and indicator of the recognition of the importance of that particular body. You're right, it doesn't have a judicial status and it doesn't have a statutory framework; it has all the substance of, basically, a process that has been accepted, I think, by the four nations, and its success or otherwise will be dependent upon the extent to which everybody does want to work to make it succeed. I suppose all I can really say is that I think this is a case where there is clearly a need for close scrutiny.

From the Welsh Government's side, we will work very strongly to make it succeed because we see advantages in this. At the moment, as you know, if we have a dispute over, for example, whether something is reserved or non-reserved or over an issue in terms of financial arrangements, there is actually no real process that we can actually go through. So, this at least provides a process through which these can go. Now, whether it will satisfactorily resolve some of these issues, we'll have to wait and see. I suspect there's going to be a learning curve for everyone involved, not just the Welsh, Scottish and Northern Ireland Governments, but for UK Government as well. So, it's early days. As I say, we could go much further on the issue of justiciability, and legislative frameworks are important, but it is not what is part of this. It is a step, perhaps, towards that at a later stage. But, for the moment, I suppose the best I can say is that I think this is a step forward. We'll have to wait and see how it works. It may help to resolve some of the dysfunctions, disagreements and problems that have been emerging. That will be a matter for us to assess and for you to scrutinise. 

Okay. Thank you, Counsel General, and, Alun for that follow-up there. This is a bit of a teaser because we'll come back to this in some detailed scrutiny, but it's good to get a flavour of your thinking and your response to the announcement that we've heard in the last few days and so on. It's been long awaited. 

If we can turn to the issue in front of us today, we want to cover this in quite some depth. If I could first ask, on the broad issue of accountability and leadership in the sphere of justice, can you set out your programme going forward today for the committee, and perhaps you could give us some indication as well when you'll actually publish the justice work programme as well, so we can see it in detail?

Thank you for that. I suppose the starting point is, of course, that the areas that are covered by the whole series of recommendations of the justice commission are very extensive. They go from the whole area of social justice to legislative justice and all the components that are tied within that. I think it's a programme that will go throughout the whole term. I don't think this is something where you'll say, 'Well, here's the timetable. This is when we'll achieve A, B, C.' I think it is very much a process. One of the recommendations of the Thomas commission was to create a unified ministerial function. Well, we actually have almost two ministerial functions. One is really, I suppose, the legislative function, which is of the more traditional legislative functions, which is within my portfolio of responsibilities of that and as a law officer as well, and then there are those of the Minister for Social Justice, which actually take all the justice areas, the components—the people, the community aspects, policing and the various public services that contribute to all of that. But what I would say is that you may have noticed that we've actually been working increasingly closely together. We have a justice committee that I chair, which the Minister for Social Justice sits on, and, indeed, the First Minister. We have been increasingly putting together joint statements on some of these issues, which I think is actually beginning to achieve the objectives that were originally identified within the commission.

One of the things we do intend to do is to publish almost a programme related to the issues around social justice and the devolution of justice and a strategy in the spring, and there's work going on on that at the moment. To be honest, I see three components to this. The first bit is all those areas where, to some extent, we are already working with the UK Government, with the Ministry of Justice, on those areas that are not devolved, but we are working in partnership on them, whether it be the female youth justice blueprints, the issue around the establishment of a Welsh residential centre, sexual assault referral centres, co-operation and collaboration, drug and alcohol courts pilots and so on. So, all those areas, and the areas where we can achieve things working together that will improve the justice system and the delivery for people in Wales, we will get on with.

The second part of it for me is the need to establish not the case for the devolution of justice, but how justice will be better in Wales. For me, the issue isn't who owns it, where should it be, where should it lie, but how can justice be best delivered for the people of Wales. The Thomas commission came to a very clear view on that and the preambles to the Thomas commission made it very clear about the integration of all those services. Courts are not a mechanism for distributing penalties and determining disputes solely; justice is actually far deeper than that, it is about the resolution of a combination of social and economic issues that come together that often end up with people in the courts, or families within the courts and so on. So, we want to really make that argument there as to how the justice system, or key parts of it particularly, can be better delivered in Wales. I'm particularly looking at things like probation, family, youth justice and so on—things that, for all the reasons I think we know, there are things we could do better and deliver better if only we had all those levers brought together.

The third part of it is that I think we actually need to start designing what our justice system should look like now. I think Lord Thomas said in his last session—and I've repeated it numerous times—that the devolution of justice is not a question of 'if', it's a question of 'when', and I think we need to start setting out the framework of what that justice system will look like. You'll be aware, obviously, of the work that's going on with the recommendations from the Law Commission in respect of tribunals, that part of the justice system that's already with us. I think that might be part of an embryonic framework, but there is obviously more to it than that. So, I see those three stages.

In terms of a timetable, I don't think it is a question of setting out a timetable, I think it is a question of working on those three areas as fast and as quickly and in as much detail as we can, and then building up the case and the support. I know already that there is support from the justice trade unions. I believe that, in terms of things like policing, for example, the police and crime commissioners are supportive, so I think there is a lot of goodwill out there. I think there is an obstacle at UK Government level in terms of recognition that this is the best way forward. But that is the direction I think we're going in. I hope that sort of answers it, but obviously, if you want some—

13:45

I think it does, Counsel General, answer in terms of the direction and some of your priorities, but the problem with process and so on is that it's hard to hold a Government to account on just process; it's outcomes that we're looking for. Let me just ask you a couple of tangibles. We're assuming that you do still intend to publish the justice work programme as part of the work of the sub-committee, and if so, have you got an idea when that is going to be published, even if it doesn't have a raft of timetable entries and milestones and so on? When is it going to be published? And also, how you're consulting on the crime and justice dashboards and when the live versions of them are going to be made available.

13:50

On the first thing, the justice timetable or framework, the objective there is for the spring, and that work is under way at the moment. In terms of the consultation on the dashboards and the progress there, I wonder, James, if perhaps you can provide a bit more detail on that.

Yes, I'm happy to, Counsel General. We haven't put a definitive date on the publication of those dashboards, but we're certainly hoping to do it in the next few months, I think. The consultation that we've now done with the committee on the draft is the first consultation that we've done, but we are, I think, fully intending to consult further. But once they are published, we will be able to continue to iterate them, so I suspect we won't do a great deal of further consultation prior to publication. We will get them in shape and then we'll continue to develop them once they're in the public domain.

Thank you, James, very much. We'll move on, then, to looking at some of the areas in some more detail now. I'm going to bring in Darren. Darren, thank you for being with us today at fairly short notice. Over to you.

Thanks ever so much, Huw. I do apologise. I had a few technical difficulties getting in, but managed to overcome them and I caught most of the Counsel General's introductory remarks.

Can I just ask—? The Thomas commission, Counsel General, obviously finished its work back in 2019, but I noticed that in the budget, there are still three years' worth of funding of £490,000 a year, which has been allocated from your departmental budget for the Thomas commission. Can you just explain to us precisely what that money is for?

I think what is allocated—I'll bring James in in a little bit on that in terms of what the process is in terms of that ongoing work, but it's basically work in terms of developments and review of issues that were raised by the justice commission to be brought forward. James, can you add more detail on that?

Yes. That's right, it's for taking forward the recommendations of the commission. It's not an enormous sum in terms of the public finances as a whole, obviously. Something in the region of two thirds, or coming on for two thirds, of the £490,000 is the cost of half a dozen staff to oversee the recommendations and support the Cabinet sub-committee in developing its work programme, taking it forward. And the remainder is a small budget that can be used on research and events, stakeholder engagement and the like. It's not all allocated, every penny of it, for each of the next three years, but it is obviously a commitment to there being funding available to keep this work moving over the next three years.

Obviously, £490,000 might not sound like a lot of money to you, Mr Gerard, but, of course, it's half the budget that we spend, for example, on Veterans' NHS Wales or for armed forces liaison officers across the country. So, it obviously is a significant sum. I appreciate that the Welsh Government will want to be taking forward the work of the Thomas commission and exploring further down the line how it intends to take forward the devolution of justice, because that is the stated objective of the Welsh Government, but in terms of being able to follow up those recommendations, obviously it's going to require some engagement with the UK Government as well, isn't it? So, perhaps, Counsel General, can you just tell me where discussions are at with the UK Government on possibly following up on the recommendations in the Thomas commission? Have you had any high-level meetings, et cetera?

Thanks for that question. Perhaps just to follow on from that, of course, part of the funding will go towards the work that is ongoing at the moment that's preparing for the spring, I think, launch of those areas I spoke about earlier, which are all related to the Thomas commission.

In terms of the UK Government, at the moment, we've raised it at every stage. So, I've raised it first of all with the—in fact, I had meetings arranged to discuss this with the Lord Chancellor, Robert Buckland. Of course, there was a reshuffle, and I've since then asked to discuss this with the new Lord Chancellor, Dominic Raab. Dominic Raab has referred this onto Lord Wolfson. Lord Wolfson, I had some engagement with, because we discussed the issue of the devolution of justice and all those related matters at the Legal Wales conference. I met with Lord Wolfson briefly at an event with regard to the start of the new legal year in London, and, of course, I've had a meeting with him in conjunction with the Minister for Social Justice, where, again, we've been through all those areas where we are working collaboratively at the moment.

We've also agreed between us that Welsh Government officials and UK Government or Ministry of Justice officials will be working through, looking at those areas where there is collaboration, looking at those broader recommendations of the Thomas commission as to which ones there is scope for further collaborative work on. Of course, the UK Government maintains the position that they do not support the main contention about the devolution of justice, but I think it is a step forward that there is that ongoing work at the moment on those areas where we are collaborating and where, potentially, we can do further collaboration, or new areas where we can collaborate. So, early signs of some progress, but, obviously, still a long way to go.

13:55

As you've quite rightly pointed out, the UK Government does have a different view on the devolution of justice, but there may well be areas where there can be closer collaboration and further engagement in order to take forward some of the recommendations of the commission. So, to put it in a nutshell, you're saying that the £490,000 that's been allocated not just in the next financial year, but also for the two financial years beyond, is going to help to be the resource, if you like, to push the Thomas commission agenda forward, yes?

Okay. Moving on then, if I can, just in terms of this whole issue of leadership and accountability across the justice system. Obviously, the Chair has touched a little bit on this a few moments ago in terms of strengthening some of the accountability within the Welsh Government, and particularly with the sub-committee that's now been formed. But with that sub-committee, how is it going to ensure that it gets proper engagement from all of the various Welsh Government departments to make sure that there really isn't a pigeonhole approach taken by some departments that are less engaged, if you like, in the whole justice landscape?

That's a very good point, and that, in many ways, is the major challenge with all of these, isn't it? It's an area, of course, where I think there's considerable energy and work going on from the Minister for Social Justice's work, because the engagement there—I think if you start looking through the list of areas that are there that we're now working increasingly collaboratively on, it's probably the way forward. The Cabinet sub-committee on justice is really the way these are being brought together, and one of the reasons we wanted to have a strategic approach and a report on those areas to be launched in spring—I think it's very much for that very reason, because we have to be able to show that what we want to achieve will actually deliver better for the people of Wales.

When we talk about the female and the youth justice blueprints, well, those engage a number of departments. The sexual assault referral centres do as well. The criminal justice boards in Wales, which are carrying out work, obviously engage with Welsh Government. Again, between health and, for example, prisons—so, the fact that there was a partnership agreement for prisons and health, which engages a number of departments. The same with the family justice network, which, I think, meets three times a year, and the various family justice boards.

So, you're right; pulling them together is really the challenge. That's what we want to achieve and to do. I think it's putting the case as to how we want to work collaboratively and how we think we could work better in the future that will be the one that then begins to engage more strategically with all the different relevant portfolios. And we know what many of them are—it's in terms of the local authorities, in terms of health, it's in terms of education and so on.

14:00

Can I just ask, Counsel General, there's no requirement at the moment, is there, for the family justice network or the criminal justice board or even for NHS Wales to report on their activities and how they pertain to this whole field of justice? Is that something that the Welsh Government hopes to address? It would strike me that perhaps an annual report of some sort could be pulled together with all these disparate organisations and the way that they touch the whole justice field. It could be submitted by the Welsh Government, perhaps, to the Senedd on an annual basis just to improve that accountability and help us, including the Welsh Government, to be able to monitor the progress and improvement of access to justice across the field.

Well, you're right. I mean, there's a whole series of reporting mechanisms. It's about bringing them all together, and again this will be something that I think will emerge in the spring when we launch the strategy. Just in terms of general reporting, though, in some of these areas, because of course we have representatives on some of these boards, and some of them—of course, many of them—are UK Government boards that are set up with Welsh representation and some are effectively more localised and have Welsh Government representation and representations from things like the health boards and local government, et cetera, which although part of our broader framework are not directly reportable to us. Can I ask James, in terms of the reporting issue, is there anything further you can add on that that goes beyond what I've said?

I think the observation I'd make is that they are for the most part voluntary partnerships of organisations. So, you would need all of the organisations within them to agree to any reporting. That's not to say that they wouldn't be willing to do so.

I think, for me, the Cabinet sub-committee, which again is still in relatively early days, is going to be the mechanism by which that does get pulled together. And I think the idea of how you present an annual or comprehensive justice report on progress is something that I know has been thought about, but I also think is something that would be very, very useful in terms of monitoring and scrutinising the progress that's been made in these areas cohesively. 

Thank you for that answer. I'm glad that you recognise that an annual report of some sort, either from the sub-committee or from Welsh Government more generally, might be a useful thing. It certainly, I think, would be useful for Members of the Senedd who are perhaps not as engaged with this committee as others to be able to take stock of where things are at. We'd certainly make use of that, I'm sure.

Just in terms of the fact that some of these bodies and organisations are not directly accountable to the Welsh Government, you've made that point. Obviously, the judiciary itself is not accountable directly to the Welsh Government either, but it is going to be responsible for ensuring that Welsh legislation is followed up, if you like, in the courts in terms of the judgments that are made. To what extent is there discussion between the Welsh Government and the judiciary? And is there a need for that to be a more regular, reliable rhythm—as the First Minister likes to use the phrase—of engagement with the judiciary in order to make sure that our legislation is properly regarded in the courts and by the courts? 

Well, I think what I can say is that since coming in to the position I hold I've actually been very impressed by the level of engagement that there is with the judiciary and how keen they are. And I say it in a number of areas. So, for example, myself and the First Minister met with the Lord Chief Justice, and we've had those discussions and I think that is an annual meeting that takes place to look at that particular overview and where you look at the issues in terms of data and the relationship between Welsh Government and the judiciary. 

I think the second point is, of course, that I've met on several occasions—and I've got further meetings arranged—with the presiding judge. I've met with Simon Picken and, of course, he’s now stood down from that role and there’s a new judge in position. I have a meeting planned specifically on that, and I have one very specifically to discuss and to talk about the issues relating to COVID and the environment in which the courts are working. So, I think those relations are very positive, and I think the feedback I get from the judges themselves is the importance of—. I think they recognise the interconnection between all the things the Welsh Government does and how that ties in with their ability to carry out that responsibility.

I’ve met also with the judges in the civil justice centre in Cardiff and met with the designated judge in respect of the drug and alcohol pilot. Again, there is a classic example as to really how you look at actually a problem-solving court that actually pulls together the issues that lead to people and families often being within the justice system. Of course, we had the debate on the annual report from Sir Wyn Williams in respect of the tribunals and so on, which I think is an equally important part of that.

And I think, very importantly, on top of that—. I’m very pleased, and of course it started with my predecessor, but it has come to a conclusion recently, and that’s one of the recommendations, and that is the establishment of a Law Council of Wales, which has been initiated under the chair of David Lloyd-Jones, who was until recently a Supreme Court judge, and I think a lot of these issues are actually going to begin to develop as part of the work of that Law Council of Wales. So, I think what your question’s getting at is that I think there is a good and a developed and a growing relationship that is beginning to develop a strategic structure to it.

14:05

Thank you very much, Darren. Darren’s obviously not aware that every time the phrase 'regular, reliable rhythm' is used, the First Minister gets a royalty. [Laughter.] So, there’s another one.

Rhys, you’re going to take us on into another area now.

I think Alun's got his hand up. Or he did have his hand up. 

Thank you. I just wanted to follow on from the points that Darren made. I thought the point of an annual review, actually, was a very good one, and I hope that’s something the Government does intend to take up.

In terms of the structure of governance and the administration of justice policy within the Welsh Government, there was established within Government a Welsh policing board and a criminal justice board as well. I wonder, Counsel General, if you could outline whether those bodies continue to meet on a regular basis, and your view, if they are still meeting, on how they will develop over the coming year and your view of how they will function in the future.

Well, I think the policing board that you refer to is one that is up and running, that is convened by the Minister for Social Justice, and it’s one where my intention is to attend regularly for all the reasons I’ve given in terms of joint and co-operative working and other relationships there. Again, in terms of the chief constables and the police and crime commissioners, police and crime commissioners I’ve actually met with and I’m due to meet again to talk about devolution issues.

And in terms of the all-Wales criminal justice board, there is a criminal justice in Wales board and, of course, they have carried out a—. I think they carried out a review in 2020, and I know Welsh Government was represented in this. So, this actually does exist. It seems to me that that actually covers, I suppose, the recommendation of the Thomas commission in that sense, in terms of an all-Wales criminal justice board, other than the fact that because justice isn’t devolved, it is a UK Government or an MoJ-established board, so it’s one of those where we actually participate. Were criminal justice to be devolved, I think we would want a very specific Welsh justice board—we might do things slightly differently. But that does exist, and it does meet.

14:10

Prynhawn da, Gwnsler Cyffredinol. I'm so pleased that you've welcomed on several occasions the very important report by the Law Commission about the Welsh tribunals. I know I tried on Wednesday and you wouldn't give me a definitive answer, but it cannot have come as a surprise, the recommendations by the Law Commission—in fact, it hasn't changed much from the consultation paper in December 2020—and the president of Welsh Tribunals told us in November that he wasn't anticipating much of a change from the consultation paper to the final report. But can you give us some idea of the timetable for the implementation of the recommendations?

Yes. You're right in all of those—that we could see the direction that we anticipated it was going. I think it would have been wrong to start making pronouncements on it when the Law Commission was actually doing what is a very significant and, I think, a very positive piece of work, and of course I had discussions with the Law Commission.

The key thing for me at the moment is that I also chair the Cabinet committee on the legislative programme, and of course we are looking very closely now at years two, three, and possibly beyond, of the legislative programme. What is very clear to me is that we do need legislation in this area, we do need legislation in terms of not just the creation of a single tier tribunal service, but also, as I think I answered in the question you asked in the Senedd the other day, the appellate structure, which I think is a very significant and important part of that. But very specifically there's the role of the president of tribunals, and obviously the issue with regard to future appointments, as to who might eventually, when Sir Wyn Williams does hang up his wig and court gown, when you start looking at the next phase and who might succeed.

So, I think having legislation in place, and clarity as to what this part of our justice system will look like in the future, is important. And I think what's important about it is that it also creates the framework for becoming almost, as I said, an embryonic structure for the Welsh justice system, and more broadly with other tribunals as well.

So, I suppose the best I can say at this stage is that, as the Government is looking now at the legislative programme, we're looking to see where the tribunals fit into that. But clearly there will be two things: one, a specific response to the recommendations of the report, but also then the timetabling for which legislation may be introduced. I don't know, James—do you have anything you could add to that?

So, the one thing that I did want to add to that was actually that I meant to say in response to Darren Millar's question earlier that, actually, a significant proportion of the £490,000 for justice is that it includes the people who are doing the work to take forward the Law Commission's recommendations, in that they also mirror the recommendations that were made by the Thomas commission. But other than that, I don't think that there's a great deal to add.

Thank you, Mr Gerard. Following on from the Counsel General's answer, are you confident that the legislative powers are completely within the Senedd's competence to move forward with the implementation of the recommendations?

I see no major obstacles to that. There are issues around that we want to think very carefully about, about the structure, for example, of the Welsh Tribunals board. Of course, when I was on my recent visit to Scotland, I met with the president of the Court of Session there, Lord Carloway, and we actually talked about, in many ways, the Scottish structure, and of course one of the recommendations in the Thomas commission was actually that we should model it on the Scottish system. Things are never quite as easy as that, but it was a very, very interesting and useful discussion—a discussion, for example, about tribunals that you don't actually need to have certain tribunals devolved, but where you have an administering system of tribunals, you can incorporate the operation of that tribunal system.

And I think things like that with regard to, for example, employment tribunals, might be worth exploring, but those are steps for the future, I think. Focusing on those tribunals that we do have, that part of the justice system that is ours now that is part of our structure and part of our devolved competence, I see no—. Listen, we can carry on operating as we are, but the system is not adequate as it is now. We need to look at the location of the tribunals system, we need to look at the system of independence, ensuring that there is a structure of independence from Government, because creating and developing our own judicial system, we have to ensure that it respects all the rule of law issues that we would expect a modern judicial system to have. So, I have that confidence. I'm sure there may be issues that arise that might require other engagement, but I'm sure we will be able to tackle those. 

14:15

Thank you. It's clear from the report, the Law Commission report, it's also clear from Sir Wyn Williams's evidence to us in November, and it's clear when we think about an appellate body, that the role of the president of the Welsh Tribunals will be crucial in the implementation and within the appellate body. I would imagine that the president would chair such a body or would head such an appellate body. Considering that Sir Wyn Williams's tenure is coming to an end at the end of March and that senior judicial appointments can take very many months to happen, where are we with the appointment and do we know, actually, which route of appointment are we taking this time?

Well, I suppose all that's proper for me to say at the moment is, of course, we're well aware of those issues and that discussion on the way. Sir Wyn Williams will be with us for a while yet, but, of course, you're right that we have to have in place a process for replacement. That process of replacement is going to be, to some extent, also dependent on what the role actually is. And I think the earlier point you made on it is—. I see this in some ways as almost the creation of a Welsh lord chief justice, in terms of that specific role, because for the first time in—. Well, probably the first time ever, we would effectively—. If we go down this road with the appellate structure, we will effectively be a Government that is appointing a judge of appellate stature within that part of the Welsh judicial system. So, I think these things are very, very significant. There shouldn't actually be anything controversial about this. The administration of justice is basically just about ensuring that justice is delivered better, fairly and more efficiently, as efficiently as possible. But they are significant, I think, constitutionally and in terms of perception of the judicial role within Wales. 

You mentioned in the answer, Counsel General, that Sir Wyn Williams will be with us for a while longer. I think you probably meant professionally, rather than personally. [Laughter.]

But does that mean, professionally, it's going to be extended past the end of March, because 31 March 2022 isn't far away, is it?

Yes, I think the issue—. We're looking positively about a further short extension et cetera, that will enable us to take us into that session where we can look at the legislation, the implementation of the reforms, and then the process that would need to take place in terms of the appointment of a replacement. 

Thank you. I'm glad to hear that. I'm going to take another chance to ask a question I thought maybe I didn't get a full answer to on Wednesday. It's about the general principle that the Thomas commission recommended, that the Welsh Tribunals should be used for dispute resolution for Welsh law. I asked you on Wednesday do you agree with that. On record, do you agree with that general principle, to avoid some of the difficulties we've had in the past with the housing Act, for example?

Well, the answer is 'yes'. This is part of a system that, if we go down this road, I think will naturally grow, because where you have a legislature and you have the range of devolved responsibilities that we have, then the judicial framework has to represent that. And that means that issues that arise in Wales that are related to Welsh law should be dealt with within that system, and we have to make sure the system can accommodate that and expand and have the flexibility to take on those additional responsibilities.

14:20

Moving on to problem-solving courts, Counsel General, I was glad to see that the pilot had been established for the family drug and alcohol court in the autumn. Do we have any idea how many families have used the court to date and how will that be evaluated, because the evaluation is so important, isn't it? 

Yes. The start of it—. Of course, it is a Ministry of Justice pilot, one, of course, that would probably not have taken place if it wasn't for the fact that Welsh Government has put in a substantial amount of money in order to enable it to happen, and there are discussions under way to look at the development of other pilots—the extension of the pilot into other areas. In terms of the evaluation of it, well I think it kicked off in November so I think it's probably too early to actually say. I don't know—. James, do you have any further details on that?

So, I don't know how many families have yet entered it. You're right—it started on 25 November, so it is very early days. There is a plan for evaluation of the pilot. The Welsh Government has procured the Children's Social Care Research and Development Centre at Cardiff University to evaluate the pilot, and, obviously, they'll explore if it operates in a way that is effective and enables it to be easily scaled. 

Thanks very much, Mr Gerard. With regard to criminal courts, Counsel General, I see the Police, Crime, Sentencing and Courts Bill—one of the positive things in that infamous Bill is the enabling to set up problem-solving courts in criminal cases, which is much needed. Have you had any discussion with the UK Government about any such pilot in criminal cases? 

I haven't been involved in any discussions along that. Most of the discussions in respect of the Bill—. As you realise, this is a Bill that has a whole series of—. It's almost three Bills brought together under one heading—I think it's something that was intended at one stage to be three separate Bills—and, of course, there is a legislative consent memorandum, I think, due to be discussed in Plenary. And, of course, there are aspects to the Bill that Welsh Government is very strongly opposed to—some of the civil rights issues, the encampments issues and so on, that are, indeed, very, very controversial, where Welsh Government will not be recommending support. But, of course, as you say, there are other parts to it, some of which we want to agree to. So, I think the legislative consent memorandum will be recommending from Welsh Government certain bits that we would agree with, but then we'll identify those parts that we don't.

But those positive areas—. Certainly, some positive new offences are ones that we would support. For example, there's a proposed offence now of hymenoplasty. Well, that is not something we would want to deny the people of Wales on. But it's very important that, those areas where we disagree, that those points are made clear, and those discussions are, of course, ongoing. There has been a lot of inter-ministerial discussion on that. Most of it has been led, of course, by the Minister for Social Justice, but we have, as you are probably aware, issued joint statements on this particular issue, and, of course, it will be coming up for discussion within the Senedd very shortly. 

Thank you, Counsel General. Just finally, I want to deal with remote and physical access to hearings. We heard evidence from the president of the Welsh Tribunals about the relative success—generally, the success story of the Welsh Tribunals adapting to the new, remote era. We then heard from Lord Thomas that evidence had to build on that. Of course, we need to use the best technology and we need to spend enough money on it over the years. How are you going to build on the general success of the Welsh Tribunals during the COVID pandemic to keep the tribunals open?  

I think part of is to keep it under review. There have been discussions with the president of the tribunals specifically on this, and you are absolutely right. It may be, of course, that some of the administrative tribunals are, in many ways, quite fitted to some online hearings, where there's not the same level of dependency often on oral statements and oral evidence and witness examination in that way. So, that has been relatively successful, but, of course, the problem, as I think we've discussed in the Senedd on a number of occasions, is of course those who don't—. We don't want the online hearings or remote hearings to actually become a system that a certain proportion of the population don't have access to, because we do have significant sections of our society that don't have that level of access.

So, this is one of the areas that I think is being kept under review. There is work that is going on with the Law Society as well, in terms of the engagement on the data and the technological side with the legal profession as well, who also have to often be engaged within this process. And discussions of course as to where hearings might take place; remote hearings, certainly during the COVID period, have often been from someone's home. That may be suitable as an immediate response to COVID, but in the longer term we need a proper court system for our tribunals system, which needs to have the accessibility and also then accessibility for members of the public or those who are engaged with that process. So, looking at how we might actually access also public resources, local authority resources, or other resources that exist, and I think it extends into other areas as well. I don't want to mention coroner's courts and that side yet, but those things, I think, are subject to some of the same issues. So, it's an area that is under consideration. It's being looked at. James, do you have any further information you can add on this?

14:25

I think the mental health review tribunal, of all of the Welsh tribunals, is the one where it's been hardest to replicate the working model that the tribunal finds most effective operating remotely. I know they are the tribunal that is keenest to revert to the use of in-person hearings, and that is a tribunal that has probably had the most difficulty in terms of people who don't have access to technology, and the response during the worst periods of the pandemic was to hold telephone hearings, which is a way around things, and I know it has, I think, been broadly successful but is not something that you would want to be a significant part of your armoury going forward.

Thank you very much. I've lots more I'd love to ask, but I'm looking at the time, so I'd better pass back to the Chair. Diolch yn fawr.

Thanks, Rhys. Thank you very much for that, and we might need to pick up other areas with you, Counsel General, as well, subsequently. But we've mentioned the Thomas commission several times today, and we go back to them sometimes as a bit of a lodestar for some of their recommendations. One of the things that they looked at was the issue of support for the legal sector. We know that the legal sector is something that, when it thrives, is not only a contributor to the economy throughout every part of Wales, but also helps provide that access to justice as well. So, the Thomas commission made recommendations on this. I'm just wondering, this much down the line now, this much further on, what sort of discussions are you having with, for example, the Law Council of Wales, on this, on supporting the legal sector, and also legal education as well.

Well, the Law Council of Wales had its first meeting before Christmas. I think I spoke at the introductory first half of the meeting. Of course, I am not a member of it. I've offered my support and to attend as and when required et cetera. So, we're awaiting now, I think, the next meeting of the Law Council of Wales, and I think that is going to be—. One of its subject matters is clearly going to be support for the legal sector. We have looked at the issue more generally in terms of support for legal apprenticeships and so on, certainly at the paralegal level, and of course a certain amount of training, as I've already mentioned, is going on in terms of digital access. One of the big issues, as you know, and again one that was highlighted and identified by the Thomas commission I think that we're all aware of is the access to justice, the law deserts, the legal aid situation. I probably don't want to say too much about that because there is a debate tomorrow that I'll be leading, specifically on the issue of legal aid and access to justice.

I think there was a second part to the question that I might have missed.

Well, support for legal education you've touched on, there, in terms of the apprenticeships, but is there anything you wanted to add to that?

14:30

Not really, because I think it's very important that the Law Council of Wales actually is able to consider this and to come forward with discussions, and I will engage with that. It is something that I discuss in respect of other forums with the Law Society, with the judiciary as well, in terms of the judicial training programmes that exist as well. So, it's an ongoing discussion.

Of course, on the Law Council of Wales are the universities, and, of course, part of the raison d'être for actually establishing the Law Council of Wales was also to bring the university sector into the legal framework because of the important role that they play within not only legal research but legal education and the training of lawyers themselves.

Okay. The other aspect, Counsel General, was the aspect of the role in the economy, because if we get this right, and the support is in the right place, then, in every part of Wales, the legal sector has a role to play in driving our local economies, sustaining it, as well as access to justice. So, what are your priorities there? How can you help drive the support for the legal sector throughout every part of Wales? Of course, you touched on it yourself there a moment ago: one of the things that the Thomas commission picked up on was particularly this issue of the problems within rural and post-industrial areas with the legal sector as well. So, this goes hand in hand.

Yes. I mean, part of that issue is particularly the availability of access to lawyers themselves—that is, viable, commercial, legal professions, particularly in the Valleys communities and in the rural communities—and the fact that many people don't have access to lawyers now because, increasingly, the legal aid structure is almost unsustainable, and, of course, this is something that's been addressed by Sir Christopher Bellamy, who has made very substantial recommendations in terms of criminal legal aid support.

I'm also of the view that one of the things that we need to do in terms of the profile of the legal profession within Wales is specifically with regard to, for example, the state of some of our courts, and in particular the Cardiff civil justice centre. Cardiff could be a substantial centre for commercial law, for example; other major cities are. I don't think it is feasible when you have a court infrastructure that is grossly inadequate. That's recognised by the judges. The facilities that we have already are not suitable for those who participate in it, for the lawyers, for the security of the judges, and also it's the perception of those courts. I know the Ministry of Justice is looking at it. I've raised this with the Lord Chief Justice. I've raised this with Lord Wolfson. I have it down to actually pursue still further. So, although it's not a specific responsibility, nevertheless it is an area where we could grow the legal profession, the legal economy within Wales. We do have a substantial legal structure, so that element of the legal economy, I think, we must grow.

The issue becomes, though, increasingly in the rural and I think some of the post-industrial areas that we have within Wales, how we actually have sustainable, commercially viable legal practices that are able to deliver services to people when and where they actually need them. At the moment, that is a situation that is increasingly deteriorating that needs to be addressed. It can partly be addressed by the function that legal aid would actually play within those particular areas, but it's an area also that I think the Law Council of Wales will want to address as well.

James, do you have anything to add on that?

Just on the final point that you made, part of why we were so excited about the Law Council of Wales was that it does bring together firms of all shapes and sizes all across Wales, from rural areas, small towns and cities, and practising in different fields of law. And so it's an opportunity, I suppose, for the sector to tell us what its priorities are, and certainly we're providing some workforce support and webinars and the like in areas where we're already hearing loud and clear, like law technology—cyber security I know is a real issue in the profession.

I suppose I should say as well, of course, it's important to recognise that law firms, legal practices, were major beneficiaries of the COVID response funds that the Welsh Government and, indeed, the UK Government put together. Obviously, that's been the biggest focus of firms and practices in the last year or two, but it's good that we're now, I think, in a position where we're looking a little bit longer term.

14:35

One of the areas we have looked at, of course, is this thing about apprenticeships, which I've mentioned. That's an ongoing discussion, but it's also a question as to, I suppose, the training of lawyers who want to work in Valleys communities, in rural communities et cetera, and provide those particularly community-based legal services, which is why that interconnects with the legal aid review.

Again, I think, on some of these areas, we'll continue to explore them with you, because it's saying that you've clearly done the analysis of what the problems are, helped by some of the work that's already done, but actually monitoring progress against them and getting positive outcomes is going to be something we're really interested in.

Chair, if I can add, of course, it brings you back again to this whole issue about the devolution of justice, because we're now looking at areas and responsibilities and things we want to see happen and change, which, of course, are all reserved areas—they're not actually devolved responsibilities—yet we recognise that all the other aspects of Welsh Government responsibilities and so on, the social justice element in particular, are all things that we need to engage upon, because it impacts on our community interest and society so much. So, it's one where it's easier to talk about the problem than it is to actually resolve it when the actual solution to resolving it is not something that is devolved to us, and I think that's something we'll address in the spring. 

Okay. Well, thank you for that. In the last section of this evidence session, we want to turn our attention to something entirely different. But just before we do, you touched on the issue there of legal aid and some of the difficulties in accessing legal aid. We know, as the data will show us, that there's been a 37 per cent drop in legal aid funding over roughly the last decade, from 2011-12 to 2018-19. Now, that means that the alternatives have become even more important—so, things such as the information and advice services that are out there and the action plan. Can you just give us a brief synopsis of how improving access to legal aid and advocacy services is working?

Well, it's actually a very good question and it's also quite a difficult one to talk about, because, in many areas, we now have advice deserts, and I'm sure that is reflected, probably, in every Senedd Member's case load—the people who come to Senedd Members for problem resolution and advice on issues that in the past would have been dealt with through legal advice systems and so on. And, of course, that all, really, has come to an end over recent years. So, we have the single advice fund, which, obviously, makes funding available, and we have the support that's given in terms of the advice centres, and in particular Citizens Advice, which has become increasingly important, having—off the top of my head; I'm trying to think—resolved something like close to 300,000 issues that have been raised, affecting 130,000 people. So, it is very, very significant, but it is not in itself a substitute for a proper advice system.

Rhys may not remember, but, of course, when I started practising as a lawyer, you had something called a green form advice and assistance scheme. It was a really important scheme because it enabled anybody to have a certain amount of free legal advice from a specialist on issues that impacted on them, often in welfare, housing and so on. Of course, that was done away with, and, of course, since then, there have been even more restrictions, particularly since 2010, on the legal aid scheme. So, the advice is provided either through the third sector, or through bodies that are funded by the single advice fund, or by the advice centres that are set up, and they are really the bastion of basic advice. I should add to that, of course, that there are other agencies that do that. Trade unions are very significant bodies that have always provided a degree of legal representation, something that's never been properly recognised. I've always thought it an irony that at a time when there has been legislation trying to restrict the operation of trade unions, it's actually restricted access to justice for many people as well through those particular processes. But that is where we are at the moment, and, to be honest, on the Thomas commission recommendations that were made in respect of the devolution of legal aid, I think I would like to see us moving towards the creation of a Welsh legal aid and assistance structure. It is something that I suppose we have the embryo of, but, clearly, the legal aid system at the moment is failing; it is denying justice to many people. The Welsh Government has stepped into this area, but it is very much a sort of interim solution; it is not a long-term solution to a proper advice and support system.

14:40

Okay. Well, look, thank you for that. Time is against us slightly. Could I ask—do you have to leave, like Cinderella, bang on the moment that you've told us?

I'm okay for probably another 10 minutes. I have a Cabinet meeting at 3 o'clock that I need to do a little bit of preparation for, but I've got another five to 10 minutes, if that's okay.

We won't keep you from that. Alun, I'm going to pass straight to you on an area that's been of great interest to the committee, if you'd like to take us on. It's quite a different area, Minister.

Yes. And this might be something that we do return to before the Counsel General gets in his carriage this afternoon. You wrote to us this morning pursuing a conversation that we've had over the months, talking about the dimensions of the pressures on Government in terms of the legislation programme and dealing with the demands on the process. I think the committee largely accepts that analysis; we certainly accept the points that you made in this morning's correspondence about the pressures and the size of those pressures and dimensions of the demands. There's no question about that. And I think the points that you made when you were in front of us at the end of November were also well made in terms of access to justice. So, the committee understands and accepts, I think, all of those different areas. What we're anxious to understand is the Government response to that, because it's one thing to actually describe the pressures, it's another thing then to answer those pressures.

Within the budgets that we have available to us in terms of the analysis, the budgets that deal with your areas of responsibility largely fall within a rather opaque, if you don't mind me saying, part of the budget—I think it's central services, or something. So, it's very difficult for us to actually understand the way in which the Government is responding to these demands. Could you, Counsel General, outline to us whether you are going to be pursuing additional resources, either in the current budget or in future years, in order to respond to these increased demands, and whether you believe that you have the resources available to you—I presume you don't, since you've described the pressures—to deliver on the demands being made on your function?

It's an important question. It's not one that is actually easy to answer, because, firstly, in terms of finance, well, obviously, the budget assesses a certain amount of finance that's needed in terms of the funding of, whether it's the legislative programme, it's the policy development, and it's all the areas that interact with that, as you'll be aware. It's also not the case that you can just say, 'Well, let's double the amount of money and we can double the amount that we can produce', because you can't. Just like you can't suddenly produce a doctor, the very specialist skills that are needed take many times to hone and develop and are continually changing. It's also the case that, of course, whatever you plan by way of resources, there is a certain unpredictability of what you're going to be required to do. I mean, COVID made certain changes; Brexit made certain requirements.

I'll give you an example. So, we could plan in terms of the resource that's needed for the police, crime and sentencing Bill and that would seem to be relatively straightforward. But when you look at it and say, 'Well, in fact, on 1 December, 91 amendments were tabled, of which 15 related to devolved areas, and then, just after Christmas, a further 19 substantial amendments are changed', well, suddenly, the amount of resource that goes in and the preparation for that is enormous. So, the unpredictability of the scale of the UK Government's own legislative programme—in particular, being a programme, you don't actually know where it is going to end up, and what these Bills start off as, often without any advance notice, or very limited advanced notice, as to what they will contain.

The same might be true, for example, of human rights. We have a review now of human rights. I suspect it's going to take up an enormous amount of resources. There's going to be the COVID inquiry, which is going to take up enormous resources as well. So, I think the answer to that is: it's a question of looking at the resources you need, the resources you have to have, and those resources have to be made available. For example, if there is to be a Bill on Senedd reform, then we will have to find the resources to enable that to happen. We don't know what the full extent of it is. So, I'm not really sure precisely how to answer the point, other than, quite often, it is a case of ensuring that all the things that you must do are done, that you look at the things you need to do that are a priority, and you do those in a priority order, and, sometimes, you look to how you focus resources on those. So, for example, a piece of legislation could have a whole series—. You could turn it into a Rolls-Royce piece of legislation, but there might be two or three very core points that are really the fundamentals of that legislation. So, it is often a case of having to look at how we prioritise that.

I don't think it is a case of, to be honest, just of money, of saying, 'Well, just make more money available', et cetera. It is about the co-ordination between the policy resources, the development of the legislation, as well as the drafting, as well as all the other things that are hits as you go along.

I'm not sure that actually completely answers the point that you're making, other than to say that I think we're doing the best on that. But there is no clear, definitive way of breaking it down into saying, 'This is the structure and the framework that enables things to happen and what it's going to cost, et cetera', because, along the way, there clearly are things that will be happening that we would like to legislate on but that we may not be able to.

14:45

I agree with you; I'm not sure it answers the question either. You're right in the sense that you can't deliver a doctor tomorrow or this year, but you can start to train that doctor tomorrow and this year. And there's nothing that you've said to us since the elections, since this committee was formed last summer, that indicates to us that you anticipate a lower workload and a lower number of demands on resources. So, I would anticipate that yourself as the Counsel General and your senior officials are working through the next four-, five-year period, for example, through this Senedd, to plan the resource that's going to be available to you. And I think it would be useful for us, and I think, given the time pressures this afternoon, Chair, it might be useful for the Counsel General to write to us on how he is looking towards allocating resource in the next financial year and subsequent financial years, to ensure that they have—the Government has—sufficient resource to respond to these demands. Because I don't disagree with your description of the challenges, but what I'm anxious to understand is not the dimension of the challenge but the dimension of your response, and that's really what this committee—

If I can—. Can I say I will certainly think about that and write with more detail? Because it is an important area and an important area of scrutiny. What I will say is that I'm very alert to it and I know, in all the discussions I have, this is an issue: how do we maximise and make better and streamline the use of the resources that we have, and, of course, if capacity is being expanded—we are taking on more trainees; there are regular adverts for new lawyers et cetera—to bring those on and then to train them to be able to fulfil the roles that happen to replace people who leave, who move on, et cetera? So, that is an ongoing process, and it's not one that I think we're not alert to how we do that; it's just that I think it is a very complex and multifactorial process. But you're absolutely right: as a Parliament, our legislative functions are a core of what we do. We have to be able to deliver, and within the resources that we have. There are certain anomalies in terms of how we are resourced as opposed to how UK Government is, but that's another debate for another time.

Yes, yes. It's never a popular rallying call that we need more lawyers—

I've always felt it a very popular call, but—. [Laughter.]

I have to say I'm not sure how much correspondence I've had on that matter over the years. But I agree with you, it is an essential and core function of Government, and I spent two years sitting on the Renting Homes (Wales) Bill prior to the 2016 elections, so I particularly welcome the Minister's announcement last week that it will finally be commenced this coming summer. But I think it doesn't do the reputation of Government any good at all not to be able to deliver on its core functions and not to be able to rely on a functioning competence in this area. So, I think it is important that we receive that, and what would be useful, Chair, I think, would be if you were able to write to us with current allocations and how you see those allocations for your department moving over the next financial year and subsequent financial years, so we can understand the way in which you are responding to the challenges that you're facing.

14:50

Yes, we'll look at that. I'm sure we can put something together for that.

Thank you very much, Alun, and for your responses there, Minister. You can see this is an area that we're going to keep a focus on, because we just want to make sure that Government can do its role, can perform its role and have the capacity to do that. But you heard it here first from Alun: we need more lawyers. But possibly more draftspeople and possibly more policy and so on and so forth, but anyway— 

Can I just say, Chair, that, when I first came into the Senedd, the first thing that was said to me was, 'Yippee, we've got a lawyer,' and it was the first time I'd heard that in 35 years of practice, and I haven't heard it since? [Laughter.]

Right. Okay. Well, look, thank you for taking a bit of additional time with us as well. We wanted to just get into that area a little bit, but we will keep a focus on that with you, and I know you've signalled to us as well that you're keen to engage with us on this. The letter you've sent is very helpful, and, obviously, having had it today, we'll put that out there for the public to look at as well. It does help us, but, as Alun was saying, the next question that arises from it—'Okay, so there's the analysis of the challenge and the problem. Now what?' So, we don't expect 24 hours' turnaround, have a good think on this, but I think that plotting out how Welsh Government responds to it, particularly with the challenge that, 20 years into devolution, if we had seen—. Okay, we couldn't have foreseen some of the eventualities: the pandemic, leaving the EU and so on. But that question of building up that resilience and that capacity—what do we do now, then? Anyway.

But, Counsel General, thank you very much indeed, and to you, James, as well. We'll let you go now and leave this virtual room, and we will continue with our business. Thank you. And, of course, we'll send to you—sorry, if you are still on there in the background—the full transcript for accuracy and we might follow up with some areas that we haven't been able to cover with you in the time as well.

Colleagues, thank you for that, we're going to continue on now. That was just the appetiser for our main business. Here we go.

3. Offerynnau nad ydynt yn cynnwys unrhyw faterion i’w codi o dan Reol Sefydlog 21.2 neu 21.3
3. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

So, we're going to head now into, as per normal, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. First of all, we have made negative resolution instruments, including, first of all, SL(6)116, the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (Consequential Amendments) (No. 3) Regulations 2021. We have the draft report. This instrument makes consequential amendments to secondary legislation relating to enhanced criminal records certificates and the provision of information about additional learning needs and individual development plans. There are no reporting issues here. Are we happy to agree that? We are. Thank you very much.

4. Offerynnau sy’n cynnwys 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

We turn to item No. 4, instruments that do raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. The first of these is a made negative resolution instrument, which is SL(6)121, the Education (School Day and School Year) (Wales) (Amendment) (Coronavirus) Regulations 2021. Now, could I ask our legal advisers to highlight any issues arising from the draft report that you've given to us? Gareth.

Diolch. There are just some standard merits points in the draft report, relating to breach of the 21-day rule, no formal consultation and the carrying out of impact assessments, but it is suggested none of these requires a Welsh Government response. 

On that basis, I suspect we're happy to note and agree that report. We are. Thank you.

So, it takes us on to SL(6)126, the Health Protection (Coronavirus, International Travel and Public Health Information to Travellers) (Wales) (Miscellaneous Amendments) Regulations 2022. Again, Gareth, you've identified a technical point and some merits points for us. 

14:55

The technical point notes that these regulations make reference to paragraph 2D of the rules on international travel, but paragraph 2D was revoked back in November 2021, so this leads to confusion as to the requirements for lateral flow test kits, in particular test kits provided by private test providers. Also, there are some standard coronavirus-related merits points, and the Government has not yet responded.

Okay. Have we had any Government response on that? We haven't? No. Okay. So, do we need to pick up any areas, then, with Government on that because we haven't had that response, or do we just wait on it? 

I think, hopefully, the response will come soon.

Okay. On that basis, colleagues, are we happy to note those reporting points and wait on the final response? There we are. Thank you, Gareth—we are.

We'll turn now then to made affirmative resolution instruments, starting with SL(6)123, the Official Controls (Extension of Transitional Periods and Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2021. This is related to the Trade in Animals and Related Products (Wales) Regulations 2011 and the Meat Preparations (Amendment and Transitory Modification) (Wales) (EU Exit) Regulations 2021. You've identified, Gareth, one merits point for reporting.

Yes. That point asks the Welsh Government why there was no consultation on these regulations, noting that the same changes in England were consulted upon by the UK Government. The Welsh Government has responded saying that the Welsh Government fed into the UK Government consultation so that Welsh stakeholders were consulted as part of the UK Government consultation. And when the consultation closed, there had been only one response, which supported the proposals. 

Okay, thank you very much. So, colleagues, unless you have any comments, are we happy to agree that? We are, yes. Okay.

And then we turn to a composite negative resolution instrument, SL(6)115, the Greenhouse Gas Emissions Trading Scheme (Amendment) Order 2021, relating to cost-effective emissions reductions from the power industry and aviation sectors. Now, the main changes with this Order allow installations that are currently within the hospital or small emitters opt-out scheme to apply to increase their emissions targets if their emissions are anticipated to increase following capacity growth and the introduction of interim policy measures while a wider biofuels policy is being developed. You've identified one technical point for us here, Gareth.

Members may remember last week a set of regulations laid before both the Senedd and the UK Parliament that were in English only. Here we have another piece of subordinate legislation that is in English only, but this Order is laid before the Senedd, the UK Parliament, the Scottish Parliament and the Northern Ireland Assembly. So, it's a UK-wide Order, and the Order wasn't made by a Government Minister on behalf of the UK, rather, it was made by Her Majesty. Nevertheless, the Order is in English only, which is a reporting ground under Standing Orders. The same point will apply to the Order under the next agenda item, because that Order sits alongside this Order. 

So, that's SL(6)114, the Greenhouse Gas Emissions Trading Scheme (Amendment) Order 2022—the same thing applies, Gareth, yes? Okay. But that is not unexpected, so, on the basis of that, we're happy to agree to those reporting points. We are. Okay.

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

We're moving on rapidly then to instruments that do raise issues to be reported to the Senedd under Standing Orders 21.2 and 21.3 that we've previously considered. The first of these is SL(6)102, the Education (Student Fees, Awards and Support) (Amendment) (Wales) Regulations 2021. We laid our report as a committee—. Sorry, we considered this instrument at the meeting on 10 January. We laid the report later the same day. The Welsh Government response to the report has been received. I don't know, Gareth, whether you've got any observations on this.

15:00

Only to note that the Government accepts the two errors raised by the committee.

There we are. We're always happy when the Government accepts the errors that we pointed out. So, are we happy with that? We are very happy. Thank you for that.

That takes us on to SL(6)118, the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 23) Regulations 2021. This is one that we considered at our meeting on 10 January. We laid our report later the same day. Again, Members are invited to note the Welsh Government response to the report, which has been received. Anything of interest in this, Gareth?

The committee asked the Welsh Government for more information about equality impact assessments relating to coronavirus restrictions, and the Welsh Government response provides a link to summary impact assessments that have been carried out. However, when you open the link, the latest impact assessment appears to be the assessment that was carried out for COVID passes, which relate to changes introduced back in October 2021. So, despite all the changes that have happed since then, especially in response to the omicron variant, it does not look like impact assessments have been published for a relatively long time.

Well. Okay. Aside from noting the Government response to the report, is there anything we need to do on that, Gareth? Has that problem been rectified now, do we know?

I refreshed the page only half an hour ago, but it still hadn't been updated for a couple of months at least.

Would it be appropriate then for the committee to not only note the Government's response to the report, but to respond to them and suggest that they pick up this technical glitch that they have? People will want to see that information. In terms of transparency, they will want to see it. Gareth—sorry, the other Gareth now—would that be okay, if we can do that?

Yes, Chair.

I think this is an important issue. I think we should be writing to the Minister on this, because it is right and proper, if the Government is making regulations in the way that they have made regulations over the last few weeks and months, that proper impact assessments are not only conducted by Government, but published by Government. I think that’s the least we can expect from the Government in enacting this sort of legislation. I think it’s something where we should make this a very significant point.

Thanks, Alun. We will do that, then. Some of the areas we cover do not excite a great deal of interest from the public at large, but this is one where they would have wanted it to have been, when it is made available, after delays in it being made available—that it would be there in front of them, and not a technical glitch. So, yes, we’ll take that up. Thank you for that.

6. Papurau i’w nodi
6. Papers to note

Now, as per normal, we’re going to turn now to some papers to note, some of which we’ll want to come back to in private session. We’ll just run through them here and pick up any issues with them that we need to at the moment.

First of all, item 6.1, correspondence from the Health and Social Care Committee and the Children, Young People and Education Committee in respect of the legislative consent memoranda on the Nationality and Borders Bill. I’ll just ask colleagues if we’re happy to note that letter, which is requesting an extension to the reporting deadline for the legislative consent memorandum on the Nationality and Borders Bill. And, Members, just to be aware that the Business Committee—we have a Member here with us today, actually—agreed to extend the deadline to 17 February at its meeting last week. So, just by way of an update.

If we’re happy to note that, we’ll go on to correspondence, then, under 6.2, from the Counsel General and Minister for the Constitution in respect of the Waste and Agriculture (Legislative Functions) Regulations 2022. He has given his consent, we learn from this letter, to the UK Government to make the Waste and Agriculture (Legislative Functions) Regulations 2022. So, if you’re happy to note that. If there’s anything arising, we’ll return to it later.

Item 6.3, correspondence from the Minister for Climate Change in respect of the inter-ministerial group on net zero, energy and climate change. This is regarding a meeting of the inter-ministerial group on net zero, energy and climate change, which is taking place today, 17 January—as we speak, maybe. So, we are happy to note that, I think.

Then we have 6.4, correspondence from the Counsel General and Minister for the Constitution in respect of consent to the UK Government exercising a delegated legislative power in a devolved area in relation to Wales. Now, just some comments on this. The letter from the Counsel General was received on Friday afternoon, late on, so obviously it has come to us late as well then for our consideration. The letter informs us of the Welsh Government's intention to consent to the UK Government exercising a delegated legislative power in the devolved area in relation to Wales, and agreement has been sought as to a second Order, which is to be made under section 104 of the Scotland Act 1998, in consequence of section 31 of the Social Security (Scotland) Act 2018.

The Counsel General had previously informed this committee of the Welsh Government's intention to consent to the first section 104 Order made in consequence of the 2018 Act on 8 October 2021. The Social Security (Scotland) Act 2018 (Disability Assistance, Young Carer Grants, Short-term Assistance and Winter Heating Assistance) (Consequential Provision and Modifications) Order 2021, known as 'the 2021 Order', made a number of amendments in consequence of that 2018 Act, including introducing a new form of child disability payment in Scotland. Consent to the making of that Order was provided on 14 October 2021. The Social Security (Scotland) Act 2018 (Disability Assistance and Information-Sharing)—bear with me on this—(Consequential Provision and Modifications) Order 2022 is now being brought forward to make equivalent amendments to regulation 53 of the 2001 regulations in consequence of a different form of disability benefit in Scotland called the adult disability payment, known in short as the ADP.

The Counsel General notes that he is content to agree to the Order being taken forward by the UK Government on the same basis as the 2021 Order, and that he's been asked to respond to Ben Macpherson MSP, Scottish Government Minister for Social Security and Local Government, no later than 20 January, to allow the Order to be in force by 21 March to coincide with the launch of ADP. That is a slightly unusual one in that it pertains primarily to Scotland. However, it requires intervention by our Minister as well. So, if you're happy to note that for the moment, and if you want to, then we can return to that in private session. Are we happy to note? Okay. We are, I think. I can't see any hands. Okay.

15:05
7. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
7. 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, colleagues, if I could propose, under item 7, a motion to resolve to exclude the public from the remainder of the meeting under Standing Order 17.42. Are you happy to do so? We are, and we'll move to private session. As normal, we'll just wait until we're told by our clerking team that we are in private. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:08.

Motion agreed.

The public part of the meeting ended at 15:08.