The next item is a debate on the president of the Welsh Tribunals annual report. I call on the Counsel General and Minister for the Constitution to move the motion. 

Motion NDM7834 Lesley Griffiths

To propose that the Senedd:

Notes the annual report of the President of Welsh Tribunals on the operation of the Welsh Tribunals over the 2020-2021 financial year.

Motion moved.

Thank you, Dirprwy Lywydd. I'm very pleased to open this debate, the debate on the president of the Welsh Tribunals annual report for 2020 to 2021. This is the third annual report by Sir Wyn Williams during his period as president. Before I discuss the report further, I'm sure that Members will want to join me in thanking Sir Wyn, thanking him for his commitment and dedication at all times in his role as president of the Welsh Tribunals.

Sir Wyn is the first to undertake this role that was created by the Wales Act 2017. Sir Wyn has played a key role in developing the system for Welsh Tribunals in these early days. We also remember his important contribution to strengthening the independence of the judiciary and judicial leadership. He has been vitally important as well in drawing up the agenda for the reform of Welsh Tribunals. I will have more comments to make on this in a few moments.

The past year has seen the Welsh Tribunals continue to respond to the very significant challenges posed by the coronavirus pandemic. The president gave evidence to the Legislation, Justice and Constitution Committee on 1 November and advised that all cases brought forward in 2020-21 had been dealt with by the Welsh Tribunals. And it is to the credit of the president, judicial leads, tribunal members and the Welsh Tribunals unit that the Welsh Tribunals have been able to operate remotely over the period and do so successfully in the face of difficult ongoing circumstances. This performance is particularly notable when one looks at the delays in the justice system that have been seen across England and Wales in the same period. And it is important in terms of access to justice that the Welsh Tribunals have continued to operate effectively, as the consequences for those who would have recourse to them, particularly users of the mental health review tribunal, could have been extremely serious had they not.

Of course, Sir Wyn also served on the Commission on Justice in Wales and he contributed to its comprehensive set of recommendations on the future of justice in Wales. Latterly, as president of Welsh Tribunals, he has worked with the Law Commission to inform its review of the law governing the operation of the devolved tribunals in Wales. And one of the recommendations made by the Commission on Justice in Wales, and one I anticipate is likely the Law Commission will make, concerns the structural independence of the Welsh Tribunals unit. Not only is this an issue that has been a recurring theme in each of the president's annual reports, it is one that the president reiterated in his recent appearance before the Legislation, Justice and Constitution Committee. To use the words of the president from his committee appearance,

'the Welsh Tribunals unit should be, and be seen to be, independent of Welsh Government', so as to promote the fundamental principle of the independence of the judiciary. This is not a position from which I would demur.

And as our system of Welsh tribunals under the Wales Act 2017 has developed, so has the Welsh Tribunals unit's role in administering them. The unit is part of the Welsh Government and, as a Government, we highly value and respect the work of the Welsh Tribunals judiciary. We recognise their integrity, their commitment to public service and the important role they play in the exercise of public responsibilities in Wales. And I've no doubt that this Government and this Senedd recognise and understand the importance of the principle of judicial independence. I'm confident in saying that this principle guides the way in which judicial institutions are and will continue to be supported in Wales.

I also have no doubt that the Law Commission's recommendations will identify the structural reforms required to modernise our tribunal system. A remodelling of the administration of justice will be a necessary part of our journey towards building a justice infrastructure for Wales that is capable of managing the ever greater divergence of law from England.

And finally, I'd like to turn to the president's future priorities, and two in particular: first, evaluating how the Welsh Tribunals should operate post pandemic in terms of the balance between remote and face-to-face hearings to best serve access to justice; and secondly, responding to and assisting with the implementation of recommendations made by the Law Commission. We can all be very pleased that Sir Wyn will bring his experience and leadership to bear on taking forward these important matters. Deputy Presiding Officer, in closing, I hope Members will join me in thanking the president of Welsh Tribunals for his annual report for the last financial year. Diolch, Dirprwy Lywydd.

Chair of the Legislation, Justice and Constitution Committee, Huw Irranca-Davies.

Thank you, Dirprwy Lywydd. Our committee welcomes today’s debate and the Welsh Government’s commitment to schedule debates on future annual reports by the president of Welsh Tribunals. We look forward to seeing this debate become a routine part of Senedd business.

I only have a few short comments today, but I would join indeed the Minister and Counsel General in his comments on the record on Sir Wyn, and also the future work of Sir Wyn as well. I think we are blessed in having people such as him, of his calibre, to actually guide some of this work in Wales.

On 1 November, as the Minister has said, the president of Welsh Tribunals, Sir Wyn, attended our committee meeting to discuss his annual report, and this is a precedent that was set by our predecessor committee. We thank the Chair and our predecessor committee members for going in that direction. It's one that we intend to continue throughout this Senedd term. I think it's a mark of the maturing respect and the strength of this democratic institution as well that we do this.

During the meeting, we discussed Sir Wyn’s key priorities for the rest of his term in office, in respect of access to justice and the Law Commission’s devolved tribunals in Wales project, and other matters as well, some of which the Minister has touched on. I don't intend to go into those in depth today, but he's laid out some of the important matters that actually have an effect on bread-and-butter issues for citizens in Wales. We were very grateful to Sir Wyn for his frank and extensive answers. We expect no less, I have to say, from Sir Wyn; it's the way he deals with this—very honest, very straightforward. This will help us inform our forward work programme as well. I think he pointed us in the direction of areas to look at. So, we look forward to continuing this dialogue with Sir Wyn following the publication of the upcoming report by the Law Commission too.

As part of our discussion with Sir Wyn, we gave some consideration to the work of the individual Welsh tribunals. As part of our regular monitoring work, we've written now to the relevant Senedd committees to draw their attention to the annual reports published by Welsh tribunals that fall within their remits. This, again, is part of the strengthening of our scrutiny and our due diligence here within this institution. So, we look forward to continuing this practice in our committee throughout the sixth Senedd.

And finally, in echoing the comments of the Minister and Counsel General, Sir Wyn’s term in office is currently set to end in March 2022, so we would like as a committee, and I would like personally, just to take this opportunity to put my thanks on the record to Sir Wyn for his work as president of Welsh Tribunals. Diolch yn fawr iawn, Dirprwy Lywydd.

As the president of Welsh Tribunals states, a substantial part of his report focuses upon how the Welsh tribunals have dealt with the disruption brought about by coronavirus. As the report states, tribunal members and the staff of the Welsh Tribunals unit deserve a great deal of credit for their determination to ensure that the work of the Welsh tribunals has run as smoothly as possible. The report refers to the Law Commission project on Welsh tribunals and to the provisional recommendation in the commission's consultation paper that the Welsh Tribunals unit should become a non-ministerial department. As the report states, the reasoning for supporting this recommendation is compelling and such a development would be of substantial benefit.

Speaking here in September, I asked the Counsel General for his response to this and other proposals in the consultation paper, including to standardise the processes for appointing and dismissing members of the tribunals, to standardise procedural rules across the tribunals, to replace the existing separate tribunals with a single unified first-tier tribunal, and to bring the Valuation Tribunal for Wales and school exclusion appeals panels within the unified new first-tier tribunal. In his response, the Counsel General told me that he looked forward to receiving the commission's recommendations. It would be helpful if he could now clarify his position, if these recommendations are maintained in the Law Commission's final report. 

I welcome the president of Welsh Tribunals' membership of various UK bodies, which ensures, he says, that he is well placed to keep abreast of all important developments in the tribunals that exist in all four countries of the UK. Referring to the Commission on Justice in Wales, this report states that the recommendation that courts and tribunals that determine disputes in both civil and administrative law should be under one unified system in Wales can be achieved only if there is substantial devolution of the justice function to Wales. However, devolution of justice powers would risk exacerbating the jagged edge of how devolved and non-devolved powers intersect and could cost up to £100 million a year. Further, as the Law Society states, a jurisdictional solution to accommodate Welsh law needs to be developed without creating barriers for the operation of justice or the ability of practitioners to work across Wales and England

Finally, the report refers to the Special Educational Needs Tribunal for Wales, SENTW, referring to the clear need to ensure that the education of vulnerable children is not compromised, and to the transition from SENTW to the new education tribunal. In this context, it is of extreme concern to the families I have represented that neither SENTW nor its successor body can take any further enforcement action when the relevant bodies fail to carry out their orders. 

I'd like to echo the tributes to Sir Wyn Williams, the members of the tribunals, and the Welsh Tribunals unit for all of the excellent work that they have done over this extremely challenging year with the pandemic. I'm very pleased, given the very sensible extension to Sir Wyn's term of office into March of next year, that this won't be his final annual report. We have been extremely fortunate to have someone of his quality and nature to the be the first president of Welsh Tribunals. Sir Wyn, in his annual report, and this isn't the first time he's done this, has mentioned the importance of succession planning. Judicial appointments take months rather than weeks, Minister, as you well know. So, has the Welsh Government started to discuss with the Lord Chief Justice in order to plan for Sir Wyn's succession?

Moving on to the tribunal structure, if the Welsh Government and the Senedd are serious about getting justice devolved here, we need to ensure that what we have already is being run well. The Commission on Justice in Wales in October 2019 made many recommendations about the Welsh tribunals, and I look forward to seeing the full report of the Law Commission next month. I welcomed its consultation report, and I welcome the creation of a first-tier tribunal and upper tribunal, and the consistency with regard to procedural rules, appointment and dismissal. Sir Wyn Williams has already indicated that the workload of the president of Welsh Tribunals and the Welsh Tribunals unit will increase dramatically if the Law Commission's recommendations are implemented. What are the Government's plans with regard to implementation?

It is disappointing that previous Welsh legislation has not used the Welsh tribunals. This has caused issues between the Ministry of Justice and the Welsh Government with regard to funding, and we've also lost a great opportunity to enlarge the workload of the Welsh tribunals. Do you agree with me, and also the Commission on Justice in Wales report, that with all future Welsh legislation, if practical, the dispute resolution should use the Welsh tribunals rather than the courts of England and Wales?

On tribunal performance, we've all indicated how well the tribunals have performed during these very difficult times. However, Sir Wyn Williams does mention in his report some concerns about the drop of cases with regard to the agricultural land tribunal and the Special Educational Needs Tribunal for Wales. The reasons prove elusive, but it seems that COVID was the main reason. But he in his report mentioned that research into the drop of the figures would be welcomed. Will the Government support this request and look into why the numbers have dropped?

I'd like to move to an area that I know is very close to your heart, Counsel General—that is access to justice. In tribunals, as in most places, we will not be returning to how things were before COVID. In the last report, and reiterated again in this report, Sir Wyn Williams mentions the advantages of remote hearings. Indeed, he says that remote hearings by video-conferencing has proved a great success. This has also led to an unprecedented underspend in the budget of Welsh Tribunals—over £0.5 million. Now, I appreciate that remote hearings don't work for everyone, but with such clear testimony from Sir Wyn Williams that they have worked on the whole, and with such underspend in the budget, what are the Government's plans to continue remote hearings in the future, where appropriate?

You've mentioned independence, and the reason I mention it again is because I think it's so important to stress this point.

In every annual report, as you've mentioned, Sir Wyn Williams has emphasised the importance of the independence of the Welsh Tribunals unit. And not for one second do I question that independence, but, as you are aware, it is crucial that justice is seen to be done. I'm sure you would agree, but just for the record, would you agree that we need structural independence for this unit within Welsh Government, and what are your plans to ensure this?

And to conclude, Deputy Llywydd, through the Welsh tribunals, we have an opportunity to build a justice system that is fair and accessible in Wales. For example, you don't have to pay any hearing fee in Welsh tribunals. However, in order to have a fair system, we need sufficient resources from the Government and from the Senedd for tribunals. The president of tribunals, and its members, and the staff, and everyone who uses the service, need the support that they need. And that, Counsel General, is how we can persuade the people of Wales, and prove to the people of Wales, that we can do justice better here in Wales than is done in Westminster. Thank you.

I call on the Counsel General to reply to the debate.

Thank you, Dirprwy Lywydd. Can I thank all the speakers who've contributed to this debate at the end of this long day? Can I also just reiterate the comments of support and recognition of the work of Sir Wyn Williams? I suspect he may well be listening in, so I hope he doesn't think that some of these comments are more in light of an obituary, because I can assure you that he is alive and well—it just sometimes sounds like that; I'm sure he's not going anywhere for quite some time.

Can I also say that one of the things that he—? I obviously have met with him to discuss his report, and again with the First Minister, and again with the Lord Chief Justice, on issues around the tribunals and broader legal issues. The issue of independence goes really to the heart of one of the points that he wanted to emphasise. So, on his behalf, that very much was contained I think in the statement I made, but also I think it's a point that you've made, and others have made, and we recognise this. Because the transition of the tribunals into what I hope will be a new, modern tribunal service in due course, has to be at the cornerstone of it.

A number of comments were made about the format for the tribunals in a number of the issues that were raised. Can I just say that we're obviously waiting the final report of the Law Commission on tribunals? We very much look forward to the recommendations, and indeed, I hope, to the implementation of those recommendations. Because what we are doing is really putting together now what has emerged on an ad hoc basis. There are very important aspects of administrative law that are very important to people's lives in many particular areas, and it's about putting that into what I hope will become a first-tier tribunal service, and a Welsh appeals service, with a president of tribunals who will have a very specific role.

Can I say, obviously, to the Member, that we probably disagree in terms of the issues on the devolution of justice? Because I agree with very much what Lord Thomas said to the Legislation, Justice and Constitution Committee the other day that it's not a question of 'if', it's a question of 'when'. Because it is about how we can actually do things better, rather than 'Who owns this?' or 'Who owns that?', and I think those arguments are becoming clearer and clearer as time goes on. 

The point was made very strongly in the report, and again by Sir Wyn, in terms of the impact of COVID, but the efforts that were made to ensure that those cases were still dealt with—. And it's also very clear as well that there were advantages to moving forward to the greater use of online hearings and so on. And I think the access to justice point is really about the fact that these tribunals will, I think, become increasingly inquisitorial, rather than adversarial, and that is there to actually seek the right outcome, rather than who has the best representation on a particular day. And I think that is a way in which this part of our Welsh justice system can actually do things very differently. So, I think there will be those changes, and I think we have to consider all of those within the context of the recommendations from the Law Commission, and again, the fact that almost certainly, as a consequence of that, we will need a tribunal Wales Bill, in order to reform the structures and so on. I don't want to jump the gun on it, because obviously we have to wait for the commission report. 

Our programme for government commitment is to pursue the case for the devolution of justice and policing to Wales, and the Cabinet sub-committee on justice, which I chair, has been reconvened to take that forward. As Members will be aware, the clear case for change was made out by the Commission on Justice in Wales. We are continuing to pursue the case for change within the UK Government; continuing to work with our stakeholders to explore how best to achieve change; and continuing to progress our own programme of work. And I'm pleased that the new Law Council for Wales has now been constituted, and has held its own first inaugural meeting. 

In October, together with the First Minister, as I've said, I met with the president of the tribunals to discuss his report and future priorities. I've also met with the lord chief justices, with justices of the Supreme Court, and with other senior judges serving in Wales. And I think Members can take heart at the level of engagement from our most senior judges with the particular needs of Wales—. And I'm particularly pleased to see so much positive judicial engagement with the new law council. More recently, as I said, I met with Lord Thomas of Cwmgiedd to discuss the future of justice in Wales. And, whilst the pandemic has slowed the pace of change, the arguments made out by the commission on justice for constitutional change and devolution of justice have, I think, if anything, been strengthened by the exceptional circumstances that we've found ourselves in. 

Finally, as I said, I anticipate receiving the Law Commission's report on the devolved tribunal by the end of the year. It will signpost our journey towards a modern tribunal system for Wales, and I look forward to considering the commission's recommendations for a distinct Welsh policy in this important area. Dirprwy Lywydd, in drawing to a conclusion, I'd again like to thank the president for his third annual report, and for his ongoing leadership of Welsh Tribunals. Diolch.  

The proposal is to agree the motion. Does any Member object? No. Therefore, the motion is agreed in accordance with Standing Order 12.36.

Motion agreed in accordance with Standing Order 12.36.