Item 7 is a debate on the second annual report of the president of the Welsh Tribunals. I call on the Counsel General and Minister for European Transition to move that motion—Jeremy Miles.

Motion NDM7490 Rebecca Evans

To propose that the Senedd:

Notes the second annual report of the President of Welsh Tribunals on the operation of the Welsh Tribunals.

Motion moved.

Thank you, Deputy Presiding Officer. I am very pleased that we're staging this debate on the second annual report of the president of Welsh Tribunals, which covers the financial year 2019-20. This is the first debate that we've had on these annual reports published by the president. His first annual report covered the period 2017 to March 2019, and in that report, the president, in his own words, said that 

'We are at the commencement of a journey towards providing for Wales a tribunal system which is modern, flexible, capable of responding to the reasonable needs of all tribunal users'.

Sir Wyn Williams is the first to undertake the role of president of Welsh Tribunals. His appointment is extremely important to Wales, not only in terms of the legal guidance and the wealth of experience that he brings to the role, but also because this is the first high-level judicial appointment since 1830 relating to Wales only. We must bear in mind, in terms of the tribunals we have, that we have a judiciary in Wales that, although small in size, is entirely separate to the English judiciary in this sense.

Before I muse briefly on the annual report, I'm sure Members would wish to join with me in thanking Sir Wyn for his commitment to the role of president of the Welsh Tribunals. I'm also sure that Members will wish to join with me in congratulating Sir Wyn on his appointment as chair of the UK Government inquiry into the Horizon ICT system of the Post Office. Clearly, there is great respect for him in Government in Wales and in Westminster.

The Llywydd took the Chair.

Members will have had the opportunity to consider the president's second annual report, and, like me, I think, will have read it with interest. The past year has seen the Welsh tribunals operate effectively, ensuring tribunal users have continued to be able to properly access justice. The president's next annual report will, I would anticipate, reflect in more detail on the impact of the coronavirus pandemic.

There is no doubt that the public health crisis that emerged at the end of the reporting period has posed significant risks to access to justice, and, for those who would have recourse to the mental health review tribunal, the potential to infringe on their right to a fair trial. But with only some postponements, the Welsh tribunals have continued to operate, and I'm reassured in particular by the way in which the mental health review tribunal has continued to be able to dispose of cases without the need to rely on the emergency measures that are set out in the Coronavirus Act 2020, which has effectively protected the rights of patients as a result. In my opinion, the way that all those who are involved in the Welsh tribunals have responded in truly exceptional circumstances has been very impressive. 

Turning to the wider justice agenda, the second annual report comments on the commission on justice, and particularly on the recommendations concerning Welsh tribunals. Sir Wyn Williams was, of course, a commissioner himself. The Thomas commission referred to the work to be taken forward by the Law Commission into Welsh tribunals and that the Law Commission would be able to consider reform in greater detail than the Thomas commission itself could. And whilst it has been slightly delayed, I'm pleased that the Law Commission project is now under way and is likely to report in the summer of next year. 

While I'm disappointed that we're not able to report further progress than we have on taking forward the justice commission's report, the justice agenda remains a key priority for the Welsh Government. The greatest impacts on reforming the justice system lie in progressing matters that require input from the UK Government. And the reality of the current situation, of course, is that there are more immediate priorities facing both the Welsh Government and the UK Government, where the coronavirus pandemic and the approaching end of the EU transition period, of course, dominate the agenda. But there is no doubt that the response to the pandemic has actually shone a light on the very wide extent of the Welsh Government and the Senedd's competence in areas traditionally perceived, perhaps, as reserved.

If we can legislate in these areas in the context of public health, why not for other purposes that integrate justice with areas of responsibility that are already devolved? If anything, the arguments made out by the commission on justice for constitutional change and the devolution of justice have been strengthened by the exceptional circumstances we've found ourselves in over the past six months and that will continue for the foreseeable future. We will continue to progress what we can in Wales, and we will draw on our collective experiences here in Wales to seek to build consensus and support for the argument for change, to take that forward with the UK Government when the time for that is right. 

Dirprwy Lywydd, in closing, I hope Members will join me in thanking the president of Welsh Tribunals for his second annual report. 

Can I apologise if anything I raise in my contribution was already addressed in the part of the Counsel General's speech delivered in Welsh? The translation feed did not work on my device, I'm afraid.

I think this is a very useful report in analysing the operation of tribunals in Wales, and therefore will be of general interest to people, because the statistics on tribunal use can be a very good indicator of the smooth running of key public policy areas within the competence of the Welsh Government and Welsh law. I'm sure that those who have looked at the report found that part very interesting—to see the various changes in use, both up and down. There are often particular reasons for that, of course, but it's still a very good indicator.

Of particular interest to me is what the president of Welsh Tribunals, Sir Wyn Williams, has to say about recommendations 25 and 27 of the commission on justice in Wales, which the Counsel General did refer to. Recommendation 25 states that all public bodies, ombudsmen, as we still call them, and other tribunals established under Welsh law by the Welsh Government and which make judicial or quasi-judicial decisions should be brought under the supervision of the president of Welsh Tribunals, and recommendation 26 states that the Welsh Tribunals unit should be structurally independent and Welsh Tribunals should be used for dispute resolution relating to future Welsh legislation. As Sir Wyn observes, if accepted and implemented, these recommendations would substantially increase the workload of some tribunals. He notes how substantial the volume of disputes arising from health, education, housing, and agricultural law would be.

In particular, Sir Wyn cites housing legislation, where disputes currently have to be resolved by the county court. But as we know from current legislation going through the Senedd at the moment, in terms of the renting homes Bill, it will end no-fault evictions, but I think everyone who's looked at that Bill realises that to be effective law, it must allow landlords to have effective access to law when they do have cause to evict. Because we have shifted, quite rightly in my view, to a fault-based system, away from the, in effect, no-fault system that has prevailed since the late 1980s. But at the moment, access to the county courts and the expense involved and the time taken is often a very considerable deterrent. So, the Stage 1 committee report reflected on this and did indeed ask the Welsh Government to look at the concept of a housing tribunal relating to this part of housing law and dispute resolution.

So, I think that's a very clear example of how tribunals could be used more effectively, and I think we all believe that the use of tribunals in administrating public law is often very effective and allows more access to the legal system than citizens would get through the county courts. So, I do welcome the approach that's been taken, and I do commend, as the Counsel General did, this second report of the president of Welsh Tribunals. Diolch yn fawr, Llywydd.

Thank you very much, Llywydd. It's a pleasure to participate in this important debate, which is groundbreaking in our history, of course—the report on the second annual report of the president of Welsh Tribunals, Sir Wyn Williams. In the first instance, I would also like to thank Sir Wyn for his work over the years and echo the kind words spoken about him already, particularly the contribution of the Counsel General.

The background, as set out by the Counsel General—. Because naturally, some of us have been crowing for years on the need to devolve prisons, policing, probation and justice to this Senedd. It's easy, then, to forget that one part of the justice system is already devolved, and that's what we're discussing today. We sometimes forget that—well, in fact, we often forget that. It's the administrative justice system, which looks at how we administer the legislation that is already devolved; it's these various tribunals in six different areas. As a Member of this Senedd over the years, I have been involved with a few tribunals in representing constituents, who have a dispute, usually, with the local authority on the special educational needs system.

Another tribunal, of course, is the mental health review tribunal, and in looking at the figures, that is the most active of all of them. But as the Counsel General has already stated, the tribunals already cover ground such as agriculture, mental health and special educational needs. There is also the Welsh language and the residential property tribunal. I won't cover the same ground as David Melding, but there is scope to strengthen the work of these tribunals, particularly now as the Government in this Senedd is legislating anew in certain devolved areas such as housing, and there is the potential there to generate activities for the tribunals, and we would welcome that. There is also the adjudication panel Wales.

So, there is a great deal of work that is already ongoing, and I'm sure most of us, perhaps, didn't understand that that work in the sphere of justice is already devolved to this place. Of course, the Legislation, Justice and Constitution Committee of this Senedd did scrutinise the work of the tribunals and has done in the past, and I'm sure that the Chair, if he has an opportunity to contribute, will set out our role as a committee here in the Senedd, including inviting Sir Wyn Williams to meet with us virtually as a committee.

As the Counsel General's already set out, the background to this is the Thomas report on justice in Wales, which outlines the current situation in terms of justice of Wales, and he stated that it needed to be strengthened. The tribunal system is part of that, of course, but we do need to safeguard the independence of the tribunals from the Welsh Government, too. And just to emphasise that point, in terms of the way tribunals are funded, directly or indirectly from Government, of course, they are expected to make decisions independent of Government in all of these different areas such as housing, education, mental health, and so on, and that's a challenge. There's also a challenge there for the Welsh language tribunal in ensuring the independence of the tribunals as their powers increase. We do want to see those powers increase as the years pass.

Of course, my final point is that the COVID pandemic has had a significant impact on the activities of the tribunals, as it has in every other sphere, and many of the tribunals have gone online, they've had virtual meetings dealing with problems, particularly in terms of mental health. They haven't been able to meet face to face because it wasn't possible to do so for most of this year, but the work of the tribunals continues.

Therefore, to conclude, we are starting on this journey. Many of us in this Senedd want to see the justice system devolved in its entirety to this Senedd. We're focusing here on the one section that is already devolved, and we want to see that strengthened, too, so that we improve the way that we deal with justice here in Wales. We need to build on the foundations that we have leading to the day when we do see the devolution of policing, prisons, probation—the criminal justice system in its entirety in the hands of the people of Wales, here in Wales. Thank you very much.

Llywydd, earlier this year I had the honour to chair the Legislation, Justice and Constitution Committee to lead the scrutiny of the president of Welsh Tribunals, Sir Wyn Williams, on his second annual report, and it was an honour because it was a historic session. It was the first time in Welsh history that a committee of this Senedd, the Welsh Parliament, had been able to scrutinise the operation of that part of the justice system that is devolved to the Senedd since the establishment of the Council of Wales in 1571 by Edward IV, and since the abolition of the Welsh courts, the Great Sessions, in 1830. It is important because it represents the emergence of a renewed Welsh judicial system and legal jurisdiction, and it accompanies other legal and constitutional changes that are emerging in Wales and in the UK in the light of our departure from the European Union, and presents real challenges for Welsh Government in the development of the administration of our courts and tribunals system. These predominantly relate to accessibility, the independence of the appointment and operation of those judicial and quasi-judicial functions, and the administration of justice.

Now, as the committee scrutinising these functions, we are very aware of the dysfunctionality of our current judicial arrangements. UK legal aid is very limited, and in recent years has been decimated, leaving most Welsh citizens and communities with minimal access to justice, other than the single advice fund provided by the Welsh Government and administered by Citizens Advice Cymru. In many other important areas of social policy, Welsh Government is not currently the responsible Parliament, yet many relevant parts of the judicial system remain in the hands of Westminster under the auspices of an England and Wales jurisdiction. Courts have closed across Wales, so the concept of justice for people administered in the communities in which they live has become a thing of the past. Proposals by the UK Government to enable it to bypass the courts and to breach international obligations also undermine the integrity of the rule of law and our judicial systems. The administration of justice in Wales must not become a power struggle between Westminster and this Parliament, but should rather be based on the best system of the administration of justice for the people of Wales and a recognition of the integral relationship that exists between the legal system and social policy. 

Turning more specifically to Sir Wyn Williams's report, there are a number of issues that will need to be pursued in the next Senedd. The operation of the Welsh tribunals and the role of the president are at the core, so I very much support the focus of his report on these areas, the need for a unified system under the supervision of the president, and the independence of the system for Government. The work of the Law Commission to address these issues is long overdue and vitally important in ensuring the development of our Welsh judicial system, and that it is based on sound principles that will provide a foundation based on the principles of natural justice and the rule of law. Key to this is the point made by Sir Wyn Williams in the report that it is important that the Welsh Government begins to formulate its own proposals about the future role and development of the presidency within this context. And he says this so that the Law Commission is given as much assistance on this issue as is possible. 

Now, where the public ombudsman fits in within these considerations is also something that needs to be addressed. I believe also, in the next Senedd, that it is vital that the Welsh Government establish a Minister for justice. The view that this is dependent on the further devolution of justice is not, in my view, justified. We need a voice in this Parliament to speak up for the justice system as it operates in Wales as a whole, devolved and non-devolved. Such a Minister would address the current dysfunctional interface between devolved and non-devolved functions. Justice and injustice, as we know, have no boundaries, and I believe that this would begin to address recommendation 61 of the Thomas commission that  

'Clear and accountable leadership on justice in the Welsh Government must be established under the current scheme of devolution'.

Lord Thomas called for a co-ordinated leadership through a single Minister or Deputy Minister in the Welsh Government with the oversight of all justice matters, and that the Senedd should take a more proactive role in the appropriate scrutiny of the operation of the justice system. Llywydd, this is the process that we have launched today with the discussion of this historic annual report. Thank you, Llywydd. 

Firstly, can I say thank you very much to Sir Wyn Williams as the president of the Welsh Tribunals, both for his annual report but also for everything that he and his judges have been doing? The challenges have been greater because of coronavirus, but even in the normal scheme of things, the day-to-day work is rarely glamorous and I think it is important that we put on record our appreciation for what is done. 

Reading the annual report, I hope nothing I say will be taken as a criticism of the president or the report, but more of an interest in what he has written. Firstly, I think it's important that the annual report should be self-standing. I haven't had the extent of exposure to the previous report that perhaps some others have, and just as one example, the reference in paragraph 2.5 to cross-ticketing, I don't know what cross-ticketing is, and it's not explained, as far as I can see, within the document. It refers to a member of the Welsh Tribunals cross-ticketing, and then gives a specific tribunal. I'm assuming that they're likely to be a member of another Welsh tribunal and are then cross-ticketing to one that they're not a member of, but I'd liked to have been clearer on that. There's also a reference to one individual who cross tickets from the first tier property tribunal for England into the Residential Property Tribunal Wales, so I'm not sure if it's just a general thing when someone does something that's not on the tribunal to which they're appointed.

The previous speaker, after speaking, I think, with some excitement and positivity on his behalf about the re-emergence of a renewed Welsh judicial system—. I don't support that in the way he does, but I do share his concerns about what I think he rightly observes as a dysfunctional interface, and I think the quality and the extent of the work that happened on the commission for justice is in a different league to the appetite for the UK Government to respond to it and to upend the system and to make it anew. I'm struck by how small some of these tribunals are, and also how disparate their level of functions are. So, they have the commonality of being Welsh tribunals, but then there are very significant differences between most of them and what they do.

I also look with interest in light of the degree of emphasis put on Welsh language in the development of a Welsh judiciary and appointments, as to how widely it was used in the tribunals, and note that, outside the Welsh language tribunal, of 2,251 cases, only nine were conducted in Welsh. 

I have, if I may, a question to the Minister about the Welsh tribunal unit, and how we deal with issues such as independence of the judiciary when the president of the tribunals is looking, as I understand it, to two civil servants within the WTU as a structure whereby legal advice can be sought and obtained when necessary. Is the WTU seen as an embryonic Welsh ministry of justice, and if so, when the Minister refers to it having great structural independence, is that in the way that the MoJ would, for the UK Government, often, with respect to England, or is he looking at something stronger than that?

I note that the president refers to his term and the Law Commission report and how a decision needs to be made in the short to medium term about the role of the president, and he notes that his role is mainly administrative and pastoral, and I'm sure there are very valuable and important things that he does—very much so—but I was a little unnerved to note that there's no clear statutory basis for the president to serve as a judge on tribunals. It's generally accepted that they can, or potentially should, but then the current president sets out his views as to how he's conducted his own role, and I just wonder if we need a greater clarity of understanding here, amongst judges, but also primarily, perhaps, between the Welsh Government and the UK Government, because I think the degree of divergence between the ambition of the commission on justice—. And the president was one of those commissioners and refers in this report to some of the things he learnt through that and has made me understand aspects of that report in a way I didn't before, because of what he says in this annual report today. Is that difference of view between Welsh and UK Government such that we are not getting pragmatic, sensible solutions to the operation of the system?

And I agree with Mick Antoniw; there has been a dysfunctional interface, but there are two potential ways of dealing with it. What we tend to hear here is how that means we must see devolution of justice. The other way of dealing with it is to operate some things on a UK or at least England and Wales basis, rather than further devolving, and I'm unclear where the UK Government stands. It doesn't take as much interest in this as we do, but I listened to David Melding and I'm not sure whether his stance and emphasis necessarily reflects that of his group or the UK Government. So, there is a degree of confusion. I sympathise with the president in some of his calls for that confusion to be resolved, even if I wouldn't agree with some of the ways he might wish that to happen. Thank you.

I think this is a timely moment to be discussing how we dispense justice in Wales, and I'm sure, Counsel General, you will agree that justice is not easily available or timely or cheap to access, and I wanted to particularly talk about how we could improve access for tenants to justice where they've got landlords who are breaching the law. I've got lots of cases where landlords have been disapplied as appropriate licensees, where electrical certificates have not been forthcoming, gas appliance certificates ditto. And by the time anybody could ever get into a court to get it heard, the tenants have moved on and the problem has been inherited by new tenants. So, I wondered if it's possible to consider setting up a Welsh housing court dedicated to these issues so that that might be able to free up a bit more time in the main courts for criminal matters. I'm wondering if you could just say anything about that.

I therefore call on the Counsel General to respond to the debate.

Thank you, Llywydd, I think, because of the translation—it may be an issue at my end—I'll make my remarks in English, if I may.

I thank Members for their contributions to this debate. I think it is important that we are having this debate for the reasons that many contributors have outlined, as an important step in the growing role of the Senedd in scrutinising the operation of parts of the justice system in Wales, in particular those that affect other policy areas for which we are responsible through the devolved settlement in Wales.

A number of the speakers, starting with David Melding, made the point about a need for a sort of rationalised approach, if you like, to the work of the tribunals overall, and the importance of the independence of the tribunals. Mark Reckless and Dai Lloyd also made similar points. And I would want to associate myself with the statement that Mick Antoniw made when he was Counsel General, underlining the Government's commitment to the independence of the tribunals here in Wales. It is, of course, an essential principle. I joined the First Minister in his recent meeting with Sir Wyn to hear Sir Wyn's thoughts about how that might develop into the future, and it's certainly the ambition of the Government for the structures that we have in place to serve the work of the tribunals to become more independent over time. I think an important milestone in that journey will be the report of the Law Commission next summer, which is designed specifically to look at the overall operation of the tribunals system in Wales—questions of appointment, organisation and so on. So, they will be important considerations in how we make sure that we shore up the independence of tribunals in Wales.

A number of speakers made the point about the growing visibility, the growing recognition, if you like, of the body of administrative justice in Wales, which has a very significant impact on the daily lives of citizens right across Wales in very meaningful ways. There's a growing understanding and discussion of it here in the Senedd, in the world of academia, but also, most importantly, in the practical business of getting remedies for people. And both David Melding and Jenny Rathbone had suggestions about that how could be enhanced even further into the future.

I just want to echo the point that Dai Lloyd made in his contribution around the importance—the significance, rather—of the fact that the tribunals system has maintained its capacity to deal with issues, even against the backdrop of coronavirus. I think there have been a very, very small number of hearings that have been postponed because they may need physical visits to land, for example, and none of those, as I understand it, are envisaged to have particular impact on the case. So, I think that's testimony to the innovation and flexibility that the tribunals system has shown in the last few weeks and months as a consequence of COVID.

Obviously, I disagree with Mark Reckless's point about the journey that lies ahead, but would very much want to associate myself with the points he made about the appreciation that we should show to all people who've participated in the tribunals system over the last year in the report.

I think Mick Antoniw's remarks, just to close, are the guide for us here. It is important that we have this debate here in the Senedd not just because the work of the tribunals touches on policy for which we are otherwise responsible, but also as part of that growing responsibility in the field of justice that many, if not most of us, wish to see. And I think part of that role, which Mick described as a more proactive role, is discharged by having these kinds of debates and bringing the work of the tribunals system into the mainstream of our thinking and considerations here in the Senedd.

So, thank you to everyone for their contributions, and thank you to Sir Wyn once again for his work.

The proposal is to agree the motion. Does any Member object? [Objection.] Yes, there is an objection and I will, therefore, defer voting until voting time.

Voting deferred until voting time.

I'm given to understand that there was an issue with interpretation, but that that has now been resolved.

I understand that there has been a translation issue. If Members using the translation have understood what I've just said in Welsh, can you indicate on Zoom that you're hearing the translation? Yes, I can see that, so we can proceed in both Welsh and English with some confidence.