Questions Without Notice from Party Spokespeople

2. Questions to the Counsel General – in the Senedd at 2:42 pm on 21 May 2024.

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Photo of Elin Jones Elin Jones Plaid Cymru 2:42, 21 May 2024

(Translated)

Questions now from the party spokespeople. Welsh Conservatives spokesperson, Mark Isherwood

Photo of Mark Isherwood Mark Isherwood Conservative

In June 2023, you published a White Paper consultation entitled 'A new tribunal system for Wales', which closed last October, after receiving just 54 responses. As you know, the proposals in the White Paper set out the intention to create a unified tribunal system for Wales, comprising two new tribunals: the first-tier tribunal for Wales and the appeal tribunal for Wales, respectively. As you develop the legislative changes you propose to reform the tribunal system in Wales, how will you respond to the 91 per cent of positive responses to the question in the consultation asking whether respondents agree the jurisdictions of the Welsh tribunals should be transferred to the first-tier tribunal for Wales, with some of them making the important point that disruption should be kept to a minimum with no adverse impacts on the ongoing business of each tribunal?

Photo of Mick Antoniw Mick Antoniw Labour 2:43, 21 May 2024

Thank you. Again, that's a very important question, because, following on from the Law Commission recommendations, legislation is in preparation in respect of those recommendations, with a view to a tribunal Bill, to implement the work the Law Commission has done, but also to bring up to date to the twenty-first century in a proper judicial way all those tribunals that have come to Wales in an ad hoc way—very important tribunals, but tribunals that have different structures depending upon the nature of the tribunal and how they've arrived. The intention, as you say, is to create a first-tier tribunal, and also, as I've said in the past, for the first time in Welsh history, for over 600 years and probably more, an appellate structure.

This part of the judicial system that is already devolved comes with a number of additional challenges. Firstly, I think there was a considerable amount of support. The consultation, the White Paper, I think, was very supportive of the direction in which we're going. We do want the minimum of any transitional problems to be overcome, which is why it needs to be planned very carefully. One of the issues, of course, that is very important is the independence of the tribunals and the need to look at those tribunals to be in a separate structure, but also to be proper tribunals that have the informality that we would expect from tribunals. Also, tribunals are, of course, something that offer an opportunity in terms of much greater use, I think, of the Welsh language within that part of the judicial system.

What I can assure the Member of is this: there would be no sudden shock transformation in terms of the tribunals and the way they operate, but there will be a greater modernisation of them, a greater assurance of the independence of the way in which they operate, the facilities, the resources and support that's necessary for that part of the Welsh judiciary, and also, as the tribunals develop, to look at other areas that would come naturally within a tribunal structure to see how that can actually be facilitated.

I was very impressed and learnt a lot by attending the Scottish Courts and Tribunals Service in Scotland, who introduced legislation on this in 2014. They, of course, have a very different history, but it was a very useful exercise to learn from their own experience, and those lessons are ones that I'm giving considerable consideration to in looking at how we can benefit from those.

Photo of Mark Isherwood Mark Isherwood Conservative 2:46, 21 May 2024

Thank you. You referred to the independence of the tribunals. As you develop the legislative changes you propose to reform the tribunals system in Wales, how will you respond to the 94 per cent of positive responses to the question in the consultation asking whether the respondents agreed with the proposed statutory duty to uphold judicial independence applying to all those with responsibility for the administration of justice as that applies to the reformed tribunals system in Wales, with the president of the Education Tribunal for Wales stating,

'Most definitely. It is an imperative step that needs to be clearly established in advance of the transfer of jurisdictional powers', with Dr Huw Evans of Cardiff Metropolitan University stating that,

'in addition to the Welsh Government upholding the independence of Welsh tribunal members, the Counsel General must defend that independence', and with SNAP Cymru expressing support for the Law Commission's recommendations of a statutory duty to uphold the independence of the devolved tribunals?

Photo of Mick Antoniw Mick Antoniw Labour 2:47, 21 May 2024

The independence of tribunals is something that has come up on a number of occasions, not only in the consultation but also in discussions with the new president of tribunals, Sir Gary Hickinbottom, who I am meeting later this week. There is absolutely no question about the importance of the independence of the system. As they have come to us, there is a need to formalise that independence. My personal view—it's an area to be considered—is I don't think it's necessary to legislate for the independence. What is necessary is that we have actually a court structure that actually operates independently within a proper judicial framework. And it's not a jurisdiction that's been transferred to us; this is already with us in a whole number of areas, and what we are doing is bringing it together into a proper first-tier system that secures the benefit of Welsh judges being able to sit in more than one tribunal, but also, as we pass legislation that may create offences or appeals structures or matters that would be referred to a tribunal, that that would be the natural home for those matters to actually be considered.

Photo of Mark Isherwood Mark Isherwood Conservative 2:48, 21 May 2024

Thank you. My final question on this theme: responding to your statement here last June on tribunal reform and Wales's evolving judicial landscape, I again raised concerns with you that vulnerable children and their families in Wales were being let down because the Education Tribunal for Wales lacks any enforcement powers and cannot take further enforcement action when the relevant public bodies fail to carry out their orders. Despite the High Court ruling in 2018 that the exclusion of an autistic pupil for behaviour arising from their autism was unlawful, I continue to receive north Wales casework where this is happening. So, as you develop the legislative changes you propose to reform the tribunal system in Wales, how will you therefore respond to the 80 per cent of positive responses to the question in the consultation asking whether respondents agreed that the jurisdiction of school exclusion appeal panels should be transferred to the first-tier tribunal for Wales, with the president of the Education Tribunal for Wales stating that, 

'The specialist expertise of our Tribunal Specialist Members mean that we are best placed to make fair and just decisions which are independent of an individual School or Local Authority process'?

Photo of Mick Antoniw Mick Antoniw Labour 2:49, 21 May 2024

I agree with those latter points that you've made on this, and I think the intention is that the issue of school exclusions is a matter that will come into the tribunals in due course. Whether it comes in right at the first instance is another matter. As you know, there is already a mechanism in respect of school exclusions. But, of course, what we do recognise, and I certainly recognise it in terms of the number of times I've sat in now in the youth courts, is we see how important the issue of exclusions is, the role it plays in the pathway of young people, whether it's into criminality, and so on. So, in many ways, in terms of our social objectives of keeping young people out of the criminal justice system, out of eventually the prison system, addressing the problems they have and early interventions, I think exclusions are actually a really significant part of that. We've got to make sure that we handle it properly, and I think certainly the direction we're in is that exclusions are a matter that will, in due course, come into the first-tier tribunal system, once it is actually established. And I think that would be, probably, in keeping with the outcome of the consultation and the comments that were made during that consultation process.

Photo of Adam Price Adam Price Plaid Cymru

Diolch, Llywydd. Counsel General, you and I have had the opportunity on more than one occasion now to discuss the proposal to introduce a prohibition against deliberate deception by current and prospective Members of the Senedd. Now, that proposal is incorporated in a new section, section 64, of the Elections and Elected Bodies (Wales) Bill, following the committee stage of that Bill last week. You opposed the proposal at committee stage, but I'd be grateful if you could tell the Senedd what the Government now proposes to do at Stage 3 in relation to this proposal. Will you seek to remove it, or will you bring forward amendments to refine it, addressing many of the issues that you raised?

Photo of Mick Antoniw Mick Antoniw Labour 2:52, 21 May 2024

Well, thank you for that. On the amendment, as you will know from the contributions I made during that Stage 2 session, I have very serious concerns about that, in connection with whether it will be in competence, together with the issue of the rule of law, the clarity of the legislation, the capacity for it to be implemented, the creation of potentially a criminal offence where there has been no engagement or proper consultation, and so on. I will be, certainly, analysing the amendment that was made. I will be giving consideration to it, and I will certainly be coming forward with a view prior to Stage 3, which I think is around about 17 or 18 June. But, you are aware of the views that I have on it.

What options may be open to the Welsh Government to either improve it or ensure the efficacy of the legislation are still under consideration. As you know, my preferred direction would be that this is a matter, together with the issue of recall, that would be best considered and explored by the Standards of Conduct Committee, which has actually started that work. My primary objective is not in terms of the intention of what that amendment is, but what is the actual best way to create law that is good law but is also effective law. I have considerable doubts over the nature of that part of the legislative amendment that was made, but it's still under my consideration.

Photo of Adam Price Adam Price Plaid Cymru 2:54, 21 May 2024

In your comments last week at committee stage, you said that the Government had not yet produced a comprehensive, deep-delve—I think that was your phrase, Counsel General—legal analysis of the proposal. We have discussed it on many occasions now, but that analysis to date has not been conducted, you said. You've provided again, I think, a short summary of the areas where you think there are concerns, but will you now be commissioning that comprehensive legal analysis from the Government's legal advisers? And, in order to facilitate the widest possible parliamentary and, indeed, public scrutiny of the proposal and the Government's interpretation of it, will you be publishing that legal analysis so that we can have a shared basis for understanding where the Government has identified issues that we need to resolve at Stage 3?

Photo of Mick Antoniw Mick Antoniw Labour 2:55, 21 May 2024

Well, thank you for those comments. Of course, when the amendment came in, there was barely a couple of days' notice to actually give consideration to that. So, it is a concern to have significant legislation that comes in that has not already had that detailed work done on it or that earlier scrutiny, and that is one of my concerns about making an amendment such as this on the back of a piece of legislation within a couple of days. Those issues of competence that I want to explore are issues to do with the Perjury Act 1911. They're also to do with the Human Rights Act 1998. There are also some rule-of-law issues.

Now, I'd be very careful in terms of how I consider the issue of competence because, firstly, I have to form a view on it. But, secondly, I also have a particular function at the end of a piece of legislation, as Counsel General, which I conduct independent of Government, which I can only exercise once legislation has been concluded, which is whether or not to refer it to the Supreme Court, or whether it might be referred by the Attorney General to the Supreme Court. In which case, I have to take a position on it at that particular stage. That's why, really, I have the concern about the nature of such a significant amendment, creating a criminal offence that has not been subject to any of the normal engagements or scrutiny of that. And, of course, don't forget, if the matter were referred to the Supreme Court, it is very unlikely this Bill would be able to come into force for the 2026 election. So, that is also a consideration I have in how this legislation should pursue through Stage 3.

Photo of Adam Price Adam Price Plaid Cymru 2:57, 21 May 2024

I'd just point out to the Counsel General that 18 June will be the fourth formal opportunity for the Senedd to be discussing this proposal. This is what parliaments do—they amend Government Bills, and probably we should do it more often.

Does he not accept that the infected blood inquiry, in the most horrifically graphic way, has shown that there is a culture of lying and cover-up in politics? And there's an asymmetry of suffering at the moment, because the politicians who lie face no consequences, but the people who are victims of those lies face the most terrible consequences, and that's what we're trying to change with this proposal. Could I suggest to him, given that context, and in the current climate of public opinion, it would do no good at all to the reputation of this Government if you were to seek to remove a proposal to ban, to prohibit lying in politics? So, instead of doing that, work with us on a cross-party basis to get this right, because it's what the public want to see.

Photo of Mick Antoniw Mick Antoniw Labour 2:58, 21 May 2024

I certainly agree with that latter point, which is why I actually think that, in the area in terms of issues of recall, in the issues of standards, and the issue in terms deception, having a properly considered piece of legislation and scrutinised piece of legislation, and legislation that has properly engaged people and relevant parties and stakeholders as well, is actually the most effective way of achieving legislation that actually works.

Now, you're absolutely right—in terms of events, whether it by Hillsborough, whether it be the calls in terms of Orgreave, whether it be in terms of the contaminated blood, Horizon and so on—that what is needed is really what my colleague Jack Sargeant has asked for, and that is a statutory duty of candour. What I'm concerned with is an amendment on legislation that purports to resolve a problem but, actually, solely amounts to little more than bad and ineffective law. That's my concern—that we see something as a quick, silver-bullet solution, but turns out, once it is scrutinised, to be nothing of the sort. So, I think it's very, very important in this place that the legislation that we do on such important matters is legislation that will actually work, that will actually be effective and that will actually deliver what we want it to do. I have considerable doubt whether the amendment that was passed actually overcomes those particular hurdles.