Thank you very much, Dirprwy Lywydd. A fair and effective justice system and the rule of law are the cornerstones of our democracy. The Commission on Justice in Wales, chaired by Lord Thomas of Cwmgiedd, captured the crux of the matter when it stated:
'Justice is at the heart of any system of democratic government of a nation: The justice system is not an island. It is integral to ensuring that the rights of the people of Wales are in every respect protected, enhanced and enforced. The enforcement of law and the just determination of disputes are essential to a fair and just society.'
In May last year, we published 'Delivering Justice for Wales', which sets out many of the innovative ways in which justice is being delivered in Wales. This publication was an important starting point in terms of communicating a distinct and powerful future vision for justice in Wales, witnessed not by promises for the future but through the evidence of practice in parts of the system right now.
Today, I want to make a statement about some of the further practical actions that we are taking to advance that vision.
In particular, we are making important progress in the area of justice where we have the most control, namely the devolved tribunals. Most Members will be familiar with the fact that the operation of a number of tribunals is devolved to Wales in areas such as mental health, education, council tax valuation and the Welsh language, amongst others. Those devolved tribunals provide a commendable service to the people of Wales, but the Commission on Justice in Wales, in its review of justice in Wales, and the Law Commission, in its review of devolved tribunals, are unequivocal in their respective views that reform is needed to both futureproof the tribunal system and to make it better.
Last week, we published a White Paper entitled 'A New Tribunal System for Wales'. The main proposals include the creation of a first-tier tribunal for Wales, to take on the functions of all the existing devolved tribunals, and the creation of an appeal tribunal for Wales, to hear all appeals from that first tier. This will be the first-ever Wales-only appellate body. The new structure will allow a simplified and coherent approach to the appointment of tribunal members, to complaints and discipline, and the creation of procedural rules. It will be more accessible. Crucially, it will also give structural independence, through the creation of a statutory arm's-length body to administer the two new tribunals. The new tribunal system proposed by the White Paper will not only better meet the present needs of tribunal justice, but will also be able to meet the future needs of Wales, going forward.
To give one example: the decision to exclude a child from a school is pivotal to their future prospects. There must be no doubt that, where those decisions are appealed, they are heard independently, by experts, and with a consistent approach taken, wherever the exclusion takes place. Our reforms will pass the responsibility for these appeals from locally constituted ad hoc panels to the education chamber of the new first-tier tribunal. Tribunal reform is important in itself, but it also lays the foundation for a future where justice is devolved and Wales administers its own wider system, including the courts. I have long believed that the devolution of justice is inevitable.
We will, of course, await the findings of the Independent Commission on the Constitutional Future of Wales, but in the meantime, in the wake of Gordon Brown's commission for the UK Labour Party, devolution is becoming a very real prospect, and we have a duty to prepare. It is essential that any plans are co-produced with experts and those with lived experience of contact with the justice system. That is why we have commissioned a range of work in the spheres of youth justice and probation, to understand how devolution of these areas could happen in practice and how we could maximise the positive impact of devolving these services to Wales. We also hope to undertake similar work on policing devolution in the near future.
On youth justice, we commissioned Dr Jonathan Evans to lead an informal review of the system in Wales, which will shortly be concluding. This has been taken forward through an advisory group with a wide range of members. So far, this group has produced key insights into how youth justice services in Wales could be strengthened and more aligned with Welsh social justice policy. It poses exciting questions about how public services can work together even more effectively in preventing youth crime, as well as how we treat those children who do commit crimes and, indeed, their victims. Part of that work, too, is to look at the operation of the youth court and whether that could be improved, including whether this is another area where the expertise of members of the current education tribunal could play a role.
I am also pleased to announce that the Wales Centre for Public Policy will be taking forward a similar piece of work on probation. This work will dovetail with that of the probation development group, a group of academics and people with experience of practice, who are already undertaking work considering some components of a vision for future probation services in Wales.
These projects will lay the groundwork for further reflection and activity. We hope to be able to use the outputs as the foundation for broader consultation in the coming months. Our independent expert advisor, Dame Vera Baird KC, will play a critical role in this, providing expert support and ensuring that our plans are put through the necessary scrutiny.
We will, of course, update the Senedd as this work progresses. We also expect to publish an annual review of 'Delivering Justice for Wales' in the autumn, setting out our progress in these areas that I have mentioned today, as well as the wider justice work programme. I hope Members will support our pragmatic approach to preparing for justice devolution, and our proposals for tribunal reform as part of this. These initial steps I have outlined will, in my view, set us up for building a better justice service for the people of Wales. Diolch yn fawr.
The UK Wales Act 2017 established the role of president of Welsh Tribunals to oversee the seven devolved tribunals that are the responsibility of the Welsh Government and over which the president presides. In consequence, we recognise the logic in establishing a single coherent system in which these seven tribunals all operate within the same framework, as in England under the UK Tribunals, Courts and Enforcement Act 2007. However, we cannot support the separate issue of full devolution of the justice system for the evidence-based reasons I again summarised here last week and do not propose to rehearse once more.
Further, in terms of outcomes, the Welsh Government's record on the devolved services associated with youth justice and probation is, to put it politely, not good. However, when I questioned you previously about tribunal reform, I noted that the Law Commission's December 2021 final report on devolved tribunals in Wales included:
'we are persuaded that the non-ministerial department model is the one that should be adopted for the future administration of the system of devolved tribunals in Wales.'
'The tribunals service should be operationally independent from the Welsh Government.'
Replying to me on this in March, you stated:
'the points that the Member raises are absolutely fundamental, and that is that that part of the justice system has to be independent of Government...it has to be a model that ensures the independent operation of the Welsh Tribunals unit'.
But you added that while the Welsh Government supports the Welsh Tribunals unit having a much greater degree of independence, it has not committed to creating a non-ministerial department to administer the Welsh tribunals.
The concept of separation of powers between legislature—i.e. Senedd—Executive—i.e. Welsh Government—and judiciary has long applied in and across the UK to prevent the concentration of power by providing checks and balances. How therefore will the proposal in the White Paper 'A New Tribunal System for Wales' for the creation of a new structurally independent arm's-length body to administer the first-tier tribunal for Wales and the appeals tribunal for Wales operate in this specific context?
Your White Paper also proposes the creation of a first-tier tribunal for Wales with a chamber structure, and the creation of an appeal tribunal for Wales. To what extent will this replicate the structure introduced by the UK Tribunals, Courts and Enforcement Act 2007, in which tribunals are split broadly into the first-tier tribunal to hear cases at first instance, and the upper tribunal to hear appeals from the first tribunal, with both the first-tier tribunal and the upper tribunal split into a number of specialist chambers? It seems eerily similar.
Under the UK Tribunals, Courts and Enforcement Act 2007, from the upper tribunal there's the possibility of appeal to the Court of Appeal and from there to the Supreme Court. Will this safeguard also apply to the new tribunal system you propose for Wales? You propose what you describe as simplified and coherent approaches to the appointment of tribunal members and complaints across the new tribunal system. How will these ensure merit, rigour and independence from the executive and legislature?
Finally, I’ve previously raised concerns with you that vulnerable children and their families in Wales are being let down because neither the Special Educational Needs Tribunal for Wales previously, nor its successor body now, has any enforcement powers and cannot take further enforcement action when the relevant public bodies fail to carry out their instructions. Quoting in September 2021 from the president of Welsh Tribunals' annual report then, I stated that the report refers to the Special Educational Needs Tribunal for Wales, referring to the
'clear need to ensure that the education of vulnerable children is not compromised' and to the transition from the SEN Tribunal for Wales to the education tribunal. In your reply you stated:
'I think the issues around the tribunals, the organisation of the tribunals, and the decisions of the tribunals are going to be a matter for what I think will be a tribunals Bill, where all these issues are going to have to be looked at'.
How therefore do you propose to address this now, when this remains a recurrent theme in my casework? The tribunal has confirmed that the new legislation does not change how compliance with tribunal orders are dealt with. Although the orders are legally binding, the tribunal still has no enforcement powers, and although a judicial review could be brought against the local authority in the High Court, this is clearly beyond the means of the vast majority of affected families. Diolch.
Thank you for the variety of questions, and thank you for the detail and the consideration you’ve given to the report. I think it recognises the importance of these proposals, so I’m very grateful for the fact that you support the logic in terms of the reforms, and you quite correctly do have a number of questions to ask.
If I could just take the question you asked about the 2007 Act and the reforms within England, you’re absolutely right, they are based on those similar proposals. It was the Leggatt report in 2007 that basically called for reforms across the UK. The devolved tribunals were not incorporated within that, but the report was very, very clear at that time. It said that:
'If it is to be capable of handling its workload effectively, and ensuring the consistent development of the law, the Tribunal system must have a coherent structure to enable the effective management of workload, encourage consistency, and further a common approach in decision-making and case handling and management.'
Since then there have been a variety of reports. Of course, the Commission on Justice in Wales covered this issue. Again, there was the Law Commission report, which was commissioned by the Welsh Government, and there was also a report back in 2014 on the review of tribunals operating in Wales.
The difference I think is that at that particular time, because of devolution, and because of the different way in which, on an ad hoc basis, tribunals have developed and come about within Wales, with all sorts of different structures in place, there was a need for quite serious consideration of what reform would be and how it would actually take place. So, it is based on those fundamental principles, and that is that you have a first-tier chamber, and that you create specialist chambers within that, and the specialist chambers are again referred to in the White Paper. They would allow for not only a coherent system, but the development of specialisms, and also the ability and the flexibility to take on other areas. One of the recommendations in the White Paper is of course a general chamber to take on board additional areas that might be devolved to it.
In terms of youth services and youth justice, well of course this has been a matter where the Welsh Government has worked closely with the Ministry of Justice, and it has been effective. It doesn’t deal with the long-term consistency that’s needed, and why there is such a strong case for the devolution of youth justice, which is what we’re working on.
Today’s statement is fundamentally about the reform of the tribunal system and the White Paper that was published last week. In terms of the appeals system, well, it will be the first appeals system that is in existence. It will be a Welsh appeals system that replicates the appeals system, and of course beyond that there will be the normal ability for appeals in respect of judicial review and so on.
In terms of the president of tribunals, special educational needs and the education chamber and so on, I think the transition to that should be relatively seamless. I don't see that it will create difficulties. I think it will also, though, create a much more specialist education chamber that will be able to take on other areas such as those mentioned, for example the exclusions.
What I'd say in conclusion to all the points you made is that, of course, this is a White Paper. It has gone out, it is there for consultation, and there will, no doubt, be a number of particular views, particularly on, for example, the financial system that you mentioned, what is the best system. What I can say very adamantly is that I want to see the maximisation of independence within that. As I said last time when this came up, there are, of course, different views around that, and I'm sure there will be a number of contributions as to precisely what structure that independence should actually take, whether it's an arm's-length body, et cetera, or what the precise format might be. So, that is a matter for, I think, for further debate, but I really do hope that you will not only put your own submission in, your own comments in to the White Paper consultation, but so will all the other bodies that are interested.
In general, the responses I've had to the White Paper have been very, very positive. People are very, very pleased to see that it is there. It is a substantial reform, and we would consider all the responses that come through that White Paper very, very carefully, because we want a system that is independent, that is effective and that properly represents the judiciable issues around the delivery of Welsh services.
We welcome the launch of the consultation on the White Paper on the new legislation to reform the Welsh tribunal system. As highlighted in the Law Commission's report of December 2021, the current system in Wales is complicated and inconsistent, and, in some instances, unfit for practice. We hope that the proposed legislation will result in a fairer and more accessible tribunal system for Wales that fully reflects the devolution landscape in which it now resides.
Of course, the Law Commission's characterisation of the current state of the Welsh tribunal system could equally be applied to the justice system in Wales as a whole. As we discussed in last week's debate, Wales's anomalous position as the only devolved nation without powers over justice and policing has been highly detrimental. This has led to poorer outcomes in terms of the criminal justice system and access to legal aid. The Minister's statement referred to the need to lay the foundations for a future where justice is devolved, and I'm heartened that the Welsh Government does envisage this legislation as part of a wider programme of much-needed reform. It's essential that the proactive approach to strengthening and enhancing Wales's devolved architecture is maintained across all policy areas.
As part of this process of laying the foundations for the future devolution of justice, it's incumbent on the Welsh Government to ensure that they get effective buy-in from the UK Labour leadership. Given the likelihood of the next Westminster Government being a Labour one, it is especially important. Unfortunately, the signs are not promising with regard to achieving that buy-in. We've mentioned before that the Gordon Brown report on the constitutional future of the UK actually rows back on the Welsh Government's long-held ambitions of justice reform. You've tended to respond to this by pointing to the fact that the Brown report references that there is no reason in principle why matters that are devolved in Scotland cannot be devolved in Wales. Whilst the sentiment is, of course, to be welcomed, it's important not to assign too much value to what is merely a non-committal statement of principle.
In terms of concrete proposals, all that is on the table for Wales from the UK Labour Party at present is the devolution of youth justice and probation services. This falls well short of what the comprehensive and compelling report from the Thomas commission recommended back in 2019. If we want to ensure that the foundations of a future Welsh justice system are robust, surely we should be pushing to get the commitment for full devolution now so that we can actually begin the process of preparing and planning in earnest. I'd like to ask the Minister, and bearing in mind the Minister's comments that the devolution of justice is inevitable, whether he agrees that the process of laying the foundation for full devolution of justice is best served by the UK Labour leadership actively committing to providing Wales with these powers as soon as possible, rather than kicking it into the long grass. Diolch yn fawr.
Thank you for the various comments you’ve made, and I agree with the general comments you make about the linkage between the justice system as a whole, and that our tribunals are actually part and parcel of that. So, taking it steps at a time, I think reforming our own tribunals, creating our own framework and structure and appellate structure, and of course, as Mark Isherwood mentioned, the creation of the role of presidents of tribunals have been very, very significant developments.
I suppose the starting point really is this: leaving outside the justice devolution issue as a whole, we want to ensure that we have a proper and an effective and an independent tribunal system. Some of the changes that have been made, the enhancing of the role of the presidents of tribunals, which is recommended, I think is something that is very important. These are significant judicial positions—the people who will actually sit as presidents and members of the various chambers. They are significant judicial positions, and this is a significant development of this part of the justice system that is within our control and that is part of the devolution process at the moment.
In terms of the Brown report, I think what was important in the Brown report also was that he made specific reference to the fact that we have our own commission on the constitutional future of Wales, and there was deference to that, and that was, as I’ve said in this Chamber before, absolutely correct. It would have been totally wrong for that report to have basically said, 'This is what Wales needs and this is what Wales should actually have', rather than say, 'Well, you have your commission under way. Here are the principles, really, for the further constitutional reform of the UK, and it's really now a matter for you to consider, and to constructively engage'.
Let me also say, of course, nothing happens—there is no change in terms of the devolution of justice—if there is another Conservative Government. So, this is all totally dependent in terms of justice devolution, on the election of a Labour Government in a year or so's time. I am confident that that is something that will happen. But what I can also say is that making changes to the justice system, and incorporating it, is no mean task. It is a very complex system with many facets to it and whichever way we were to proceed with it, takes time to ensure continuity and stability of the justice system, but also to ensure that what we’re doing actually improves the existing justice system, which is why I think the approach we've taken so far is absolutely correct. We are no longer talking about the case for the devolution of youth justice, or the case for the devolution of probation; we are actually preparing for it to actually happen, how it can happen, in what format it should be, what the legislative requirements are to actually make it happen, and that is significant, and I think you can probably take that as a sign of confidence that these are things that we believe will actually happen. I hope I've answered all your points.
Thank you very much for all the considerable work that you are putting into demonstrating how we could deliver a justice system closer to the people of Wales once we have those powers. I particularly welcome your decision to ensure that anybody excluded from school should be seen by a tribunal to examine whether or not this was an appropriate act, because it seems to me that exclusion from school is such a serious issue, it should be a rare and almost-never event. So, I think that's an excellent demonstration of how a tribunal can give properly independent scrutiny of such a decision.
I wonder if I could just ask you about the review of the youth justice system that Dr Jonathan Evans is undertaking. And I wonder if you could tell us a little bit more about who is on the advisory group that's working with him? Does it include people from education and also a speech and language therapist?
Thank you for the question, and I welcome the comments you make in terms of exclusions, because that is very much recognised; an exclusion is something that has a very dramatic impact on a young person, and I think it is absolutely appropriate that there should be a coherent and consistent system in respect of exclusions.
Issues such as admissions, of course, are still going to be dealt with locally, so they won't be part of this tribunal system. In terms of the work that's going on on the youth justice system, basically, it's a group of academics and experts in the education field who are being led, and in due course, when that work is actually completed, it will probably take us significantly forward. But I'm satisfied that within that, the people who are being consulted, who are engaged, and the individuals who are particularly working on it, are ones who have expertise within this field. This won't be the only piece of work, of course. There is also the question of the legislative structure that will need to take place, and, of course, the work of Dame Vera Baird I think is going to be very important within this. The actual skill and practical operating expertise that she has—and I think there are others around who also have that who I think would want to contribute towards ultimately putting together a devolution package, which is not talking about how you do things but saying, 'This is what we want to happen and this is how it should happen', and so that we can hit the floor running the moment the opportunity arises.
Cwnsler Cyffredinol, the consultation ends on 2 October. Could you just tell us what the timetable is after that? I'm pleased, as Jenny Rathbone mentioned, that school exclusion panels are included within the tribunal, but I was disappointed to hear you again saying that school admissions panels are not included. They suffer from the same issues as exclusion panels. They are also ad hoc, with members of the panel being appointed by the decision maker, namely the local authority, and the legal adviser of the appeal panel is a local authority employee. Their inclusion within the tribunal system would increase the workload of the education chamber, which is very important, because as you said several times, the lack of cases within the Welsh tribunals are a real concern. Does the Counsel General have an initial view on why the admissions panels are not included? I can't see the local argument being a strong argument, because that could be still incorporated within the tribunal system through unpaid members like magistrates.
I'm also pleased to see the further work being undertaken by the Welsh Government in devolving probation and youth justice. However, I just wonder, by limiting it to those areas, as the policing work hasn't started yet, is that a concession by the Welsh Government, that, due to the Brown report, it's the only likely part of the justice system that will be devolved to Wales? And do you agree that piecemeal devolution would not address the jagged edge issue? Diolch yn fawr.
Thank you, Rhys, for those comments. In terms of the timetable, I think you heard the First Minister earlier today say that, not within the third year, but before the end, there will be a Bill that will be introduced. It's not for me to say precisely what year that might be taking place, but as you know with legislation, the ongoing development of policy work and the planning for legislation is stuff that goes on over a period of time ahead of the announcement and the actual decision to actually table specific legislation. What I am confident of is that, by the end of the term of this Senedd, we will have in place a reformed tribunal system and legislation will have been passed. And, of course, as you know, we have now a new president of tribunals, former appeal court judge, Sir Gary Hickinbottom, who I have met with and the First Minister has met with, and no doubt we will want to engage with in terms of proposals for the structural reform.
In terms of the issue of admission panels, well, you're right that it's an area where there have been differing views. During the consultations, there was certainly disagreement that admissions were something that were so local, that there were so many local features, that it was something that should stay where it is. And of course, this, again, is a White Paper, so there are opportunities for positions to be put in that actually say, 'No, the alternative should be the case and that these should be—'. I think it was felt with the White Paper that the exclusions were something that definitely had to come in. The significance of an exclusion from school had such a dramatic impact. Admissions in terms of choice into particular schools involves so many local features in terms of the school, the capacity, the geography, and so on that it was felt, certainly at least for the time being, that those were things that should remain where they are. But, as I say, within the system, we want a tribunal system that has flexibility. There may be other areas of legislation involving new Welsh law and new appeal structures which, again, we might want to look, in the future, to be incorporated within our tribunal system—a system that will actually grow and reflect, increasingly, Welsh law, and also the capacity to use Welsh and develop expertise amongst lawyers and those who participate within that tribunal structure itself. So, there are very important things there.
In terms of policing, there is work that is going on in terms of policing and in terms of policy development around that. That is still ongoing. But in terms of the Brown report, and any limitation, well, Gordon Brown made it absolutely clear—there are no limits. Subsidiarity is the key thing that as much should be devolved, apart from those things that are necessary in terms of the interdependency between countries. So, the principle is there, but he was absolutely right in also saying that, depending on what the independent commission on the constitutional future of Wales and the conclusions they come to, it is something where there should then be constructive engagement with the next Government. I suspect the only constructive engagement will be with the next Labour Government, and that's why it's so important that, as I know we all want to see, a UK Labour Government is in place as soon as possible.
I'm grateful to you, Deputy Presiding Officer. Can I say how much I welcome the statement that's been made this afternoon and welcome the approach that the Counsel General is taking in these matters? I think there's going to be broad agreement across the Chamber on the work that's been done to reform the tribunal system, and I think that is something that can unite all parts of the Chamber.
My concern this afternoon—. And what I welcome about the statement was the beginning to chart a course for the devolution of policing and justice. A victims Bill is, of course, in front of the Westminster Parliament at the moment, and I'd be grateful if the Minister could outline any conversations he's had with UK Government about how that Bill may be used in order to start the work of devolving or preparation for the devolving of particularly youth justice and probation—the areas that he has focused on this afternoon.
But also, in his answer to Rhys ab Owen, be began also, I felt, to chart a course for the future in terms of the wider devolution of policing and justice. And I share with him the agreement on the principle of any subject that is devolved in, for example, Scotland can be devolved to Wales as well. But what does that mean in practice? Where does he see the timescales in this, in terms of the constitutional convention reporting to, I presume, the Welsh Government, conversations then taking place with Gordon Brown, and then how does that reach the statute book in terms of legislation in Westminster? So, I think it's important that we can understand and begin to chart that process so that the work that he's begun, and the work I very much welcome on youth justice and probation—and I think he said policing as well—can then begin in earnest to prepare for the devolution of true criminal justice to this place to ensure that the people who are currently suffering a deficiency of that system—
Thank you for that. The Member is right, of course, to, again, raise, as others have, the issue of policing. Policing is an integral part of the justice system. In many ways, much of the operation of policing is devolved in a hybrid way in terms of the fact that structures have been created for that engagement, and through the police and crime commissioners and so on. And there is an asymmetrical dysfunction, isn't there, within the UK, that certain parts of the UK already have the devolution of policing. Wales doesn't, and there is no logical reason why that should be the case. So, I think that that is also something that is an inevitability and something that will happen. And it's interesting that, when Gordon Brown talks about his report, he refers to the devolution of youth justice, probation and policing. But we're working on the basis that there are some very specific references to youth justice and to probation. Those are the ones we're focusing our work on. We're not ignoring the issue of policing. There is work and further research that is going on on that as to how it might work, how the powers might be exercised, the inter-relationships and so on. So, that is under way.
In terms of the constitutional commission with Rowan Williams and Laura McAllister, I understand that it will be reporting by the end of this year. I hope that is a report then that will be discussed sensibly, not only in this Chamber, but in all political parties and in civic society a little bit more generally as well. The key point in, I think, Gordon Brown's report relating to that is that there should then be constructive engagement with the next Labour Government.
We will, of course, if the general election hasn't taken place by then, seek to engage, of course, with the UK Government, but there is a reality in terms of the position that has been adopted by the UK Government, which is irrespective of the merits or otherwise; this is basically an ideological position that's been taken in terms of the centralisation of power, even though there would be merits in the devolution of areas of the justice system in any event. So, those are discussions that will take place then, and I think we'll have a real opportunity to discuss them in December, when that report comes out, which I very much look forward to.