Legislation, Justice and Constitution Committee

So, with those few words just to open the session this afternoon, we're delighted to have in front of us the representatives from the Law Council of Wales. We have Lord Lloyd-Jones, president of the Law Council of Wales; Professor Emyr Lewis, vice-president of the Law Council of Wales and head of the Department of Law and Criminology at Aberystwyth University; and Dr Nerys Llewelyn Jones, member of the executive committee of the Law Council of Wales, and the founder and managing partner of Agri Advisor. I hope all my briefing notes are correct on that.

Now then, I understand, Lord Lloyd-Jones and your colleagues, that you might want to say some few words by way of introduction. So, we're in your hands.

Thank you. Thank you very much, Chair, for your invitation to give evidence today.

Diolch yn fawr am eich gwahoddiad. Mae'n bleser mawr i fod yma gyda chi y prynhawn yma.

The Law Council of Wales has its origins in the Legal Wales conference held in Swansea in September 2017. It was suggested there that, while there was no shortage of initiatives or activity in relation to the study, teaching and propagation of the new body of Welsh law, in particular on the part of the Welsh law schools—the Coleg Cymraeg Cenedlaethol, the Judicial College, the Law Society, and the Wales and Chester Circuit of the bar among them—what was really needed was a measure of co-ordination in order to avoid duplication of function and to maximise the efficient use of resources. It was pointed out that there were precedents for co-ordination of this kind in the area of justice in Wales, for example Rhwydwaith Cyfiawnder Cymru, the Justice Wales Network, which enables justice agencies to share good practice, and the Welsh advisory committee of the Law Commission, which is made up of many representatives of institutions in the legal sector.

But unlike these legal bodies, the initial proposal to create a law council was directed specifically at legal education and training, and there was a close model for that in Scotland, in the Joint Standing Committee for Legal Education in Scotland, an independent consultative body. It was therefore proposed to create a body that could co-ordinate the efforts of different bodies in promoting the study and propagation of Welsh law, and it was suggested that there was scope for joint initiatives, and that it ought to be possible to disseminate a knowledge of Welsh law without reinventing the wheel every time. The proposal was taken up by the Thomas commission, which recommended that a law council of Wales should be established to promote the interests of legal education and awareness of Welsh law, to ensure proper provision of teaching the law in Welsh and to assist students in their education and training as future practitioners. The commission noted that the proposal did not require any change to the devolution scheme and did not require any action by the Senedd or the Welsh Government. The proposal was published in October 2019 ahead of the rest of the Thomas report.

The Thomas commission proposed that the law council should go further than legal education. In its view, it should be a voice for Legal Wales by promoting awareness of Welsh law, ensuring the provision of legal resources through the medium of Welsh and helping Welsh law schools to provide their students with the necessary education and training to thrive in practice. It should be an umbrella body that shares resources, supports training on Welsh law for the judiciary and the professions, and ensures collaboration and co-operative working. The proposal was taken up with enthusiasm by the Welsh Government, which took a yet broader view of the functions of the council reflected in the statement of purpose that now forms the schedule to our constitution. The council was described as a forum for the legal sector to come together to deliberate and act on common issues affecting the legal sector in Wales.

The creation of the council has been delayed by the pandemic and we are now in the process of setting it up. However, an executive committee has been established, which has adopted a constitution, and meetings of the executive committee are establishing a committee structure and identifying initial projects of work, and it is proposed to hold an initial plenary meeting early in the summer. The Counsel General and officials in the Welsh Government, in particular James Gerard and Andrew Felton, have been hugely supportive in the process. In addition, the Law Society, its secretary for Wales Jonathan Davies, and Sian Johnston, have been extremely generous in providing secretarial and other services. I'm glad to have this opportunity to thank them. We're also very grateful to the individuals and organisations that have already joined the executive committee.

Now, in view of the broadening of the functions of the council beyond legal education and training, the view has been taken by the Counsel General, by the Welsh Government and by those of us involved in the setting up of the council that the council should be independent of Government, and it is agreed that certain matters may be better discussed in the absence of representatives of Government. However, we envisage that we will be working in close collaboration with the Welsh Government, and the initial meetings of the executive committee have all been addressed by the Counsel General by invitation, and this has already proved a valuable forum for the discussion of recent developments.

As we proceed with the creation of the council, we will want to give consideration to the future involvement in its work of organisations not represented on the executive committee, and a matter of particular importance, the question of lay representation. We believe we're making reasonable progress in setting up the council, however it's important to be realistic about what can be achieved. The nature of the council imposes limitations on its functioning, and it's important that we should not raise expectations that simply cannot be fulfilled. Firstly, the council's made up of volunteers, all of whom have demanding occupations. Representation on the executive is at a very senior level. For example, the Law Commission is represented by its chair, Sir Nicholas Green; the Wales and Chester Circuit of the bar is represented by its leader, David Elias QC; and the judiciary is represented by the presiding judges for Wales and Sir Wyn Williams, the president of Welsh Tribunals. There's a limit to the time that they can devote to the work of the council.

Well, can I thank you very much for those opening remarks there? Whilst you say that you're making a cautious start, there also seems to be a level of clarity on what your focus on priorities for the next 12 months or so will be. As well as expressing to us some caution in our expectations of what the Law Council of Wales might achieve, you've certainly set out some clear priorities, and some of those I think we're going to come back to and touch on. We note, as well, that you can't be regarded as some sort of—how did you phrase it—standing policy think tank that Government or we or others can just go to and say, 'So, what's your view on this?'. But, of course, you do have the power of your executive, your members and so on, who will have some clear opinions of their own, I'm sure.

So, we welcome you being here in front of us today, and I think we'll go straight to my colleagues, because, in your opening remarks, you've successfully anticipated some of the areas I wanted to touch on with you on how early it is in your formation, how close you are to setting out your work programme, going forward—you've covered most of my areas, So, I'm going to turn to Peter, because some of the areas you've touched on, such as legal education, we might want to come back to and look at continuing professional development, but we're going to start with the awareness and accessibility of Welsh law, so, Peter, if I could hand to you, please.

Yes, thank you. It's lovely to meet you and thank you for joining us. That was really helpful for me to have some insight into how you plan to move forward, and I recognise the capacity issues and things—I can see that that's going to be, no doubt, a challenge for everybody involved. As Huw was saying, we'd quite like to discuss with you how the law council will seek to promote the awareness and the accessibility of Welsh law. How accessible do you think Welsh law is at the moment, especially in the context of the complexities around Brexit, around COVID and Welsh law making, in the wider sense, as it is at the moment? How accessible is law here?

Perhaps we could take accessibility and awareness as separate points.

Yes.

Perhaps I could deal with accessibility to start with. There is a problem as far as the accessibility of Welsh law is concerned. It's not a problem that is unique to Wales; it's a problem that is experienced throughout the United Kingdom, from the nature of our legislation. In general, there's been a massive proliferation of legislation in recent years, and a particular difficulty is that it's usually the case that you cannot find all the relevant applicable legislation in one place, and so you have to go to many different sources in order to be able to find it before you can begin to try to understand it.

There's a particular problem in Wales, I think, and a number of aspects to that, which were identified by the Law Commission in the project it undertook 10 years ago on the form and accessibility of the law in Wales—a project that I initiated and led when I was chair of the Law Commission. We identified a number of particular problems. One is in relation to secondary legislation and the power to make it: it was often unclear as to which body had the power to make secondary legislation. It was certainly not clear on the face of the documents themselves. And, as we all know, powers were transferred initially from the Secretary of State to the National Assembly, and then from the National Assembly to the Welsh Ministers, and it's often the case that powers reside in a different body from that which is identified in the primary legislation.

Additional complications arise from the fact that legislation is capable of being amended both by the Senedd and at Westminster. We therefore find, often, that you can have legislative provisions—in a particular section, you might find that some of the subsections apply to England, some of them apply to Wales, some of them apply to England and Wales, and it's very difficult to find out which are which.

And there's the additional complication, which I suppose is a general one, not specific to Wales, that amending legislation is enacted not by enacting a revised version of the legislative provision, but by providing for the specific amendment, and so you can only identify any sense from it if you have in front of you, perhaps, a whole series of different statutes, so you can read them together in order to try and derive the meaning. So, there is a problem.

The Welsh Government, I'm delighted to say, adopted every single one of the recommendations made by the Law Commission in relation to codification of Welsh law, and the Legislation (Wales) Act 2019 is the start of that. It's a huge job and I think it's going to take a generation to complete it.

Yes. Thank you for that. That shares some of the complexity of the concerns and things we've got to get under. I mean, to what extent has—? Perhaps we can understand better from you the extent to which the Welsh Government's programme for the accessibility of Welsh law mitigates any of the concerns that you might have.

Well, the codification, when complete, will go a very long way to meeting these concerns, the particular concerns that I have identified, but it is a very large undertaking.

Yes, yes, yes. Well, I gather there is a need for wider public awareness of how the law system works in Wales. As you've just indicated, it's not very clear between who makes the decisions on this and that, and I suppose those are some of the things the council will want to grapple with and, I'm assuming, make some sort of recommendations about how that can be smoothed or altered. Would that be the sort of thing that you'd be looking to do in that regard?

Well, so far in speaking about accessibility, I've really been approaching it from a lawyer's point of view: how the lawyer has to find out where is the law and then to understand it in order to advise. But you're right, there's a broader question of awareness in the community at large, and I would suggest that there's work to be done there as well, to improve public awareness of the nature of Welsh law and the areas in particular to which it applies. But perhaps this is something on which Professor Lewis might say something.

Diolch yn fawr. Ie, diolch yn fawr ichi. Maen nhw'n gwestiynau treiddgar a phwysig, ac os caf i efallai jest cychwyn drwy—. Mae yna gysylltiad, wrth gwrs, rhwng hygyrchedd ac ymwybyddiaeth, ond i ymestyn rhywfaint ar yr hyn a ddywedodd yr Arglwydd Lloyd-Jones nawr, mae hygyrchedd cyhoeddus yn dibynnu i raddau helaeth ar y cyhoedd yn cael gafael ar y gyfraith a hefyd yn ei deall hi. Does dim disgwyl i'r cyhoedd fod yn gallu gwneud y fath o waith archeolegol y mae cyfreithwyr yn ei wneud o ddydd i ddydd i ddod o hyd i'r gyfraith gywir.

Ond mae yna bethau sydd wedi cael eu gwneud sydd i'w croesawu. Dwi'n meddwl yn arbennig am yr hyn a wnaeth Llywodraeth Cymru yn ystod pandemig y coronafeirws, sydd, wrth gwrs, yn parhau, o ran sicrhau bod yr hyn roedd y cyhoedd yn ei weld o ran y rheoliadau cyfredol wedi ei grynhoi, felly roeddem ni'n gallu gweld yn union beth oedd y testun oedd mewn grym drwy ddefnyddio tracked changes—rhywbeth syml iawn sydd wedi bod yma ers degawdau, ond am ryw reswm neu'i gilydd mae rhyw fath o ymwrthod wedi bod tu mewn i goridorau grym i ddefnyddio hyn—a hefyd, gyda hynny, grynodeb mewn iaith fwy hygyrch, efallai, o beth yw'r sefyllfa o bryd i bryd. Ac roedd y newidiadau hyn yn cael eu gwneud yn fuan ac yn dda, a dwi'n gweld hwnna fel efallai un ffordd ymlaen o leiaf—rwy'n deall bod llawer iawn o adnoddau'r Llywodraeth, wrth gwrs, wedi mynd i mewn i hyn—o feithrin y math yna o ffordd o fynd ati. Yn yr un modd, mae legislation.gov.uk bellach yn sicrhau bod statudau cyfansoddiadol Cymreig yn cael eu cadw'n gyfredol. Roedd yna adeg pan oedden nhw ddim, ac maen nhw wedi gwella yn enfawr fel yna.

Ond os edrychwn ni ar y cwestiwn o ymwybyddiaeth, unwaith eto, fel gyda hygyrchedd, mae ymwybyddiaeth y cyhoedd ac ymwybyddiaeth y proffesiwn neu'r cyfreithwyr yn ddwy elfen o hyn. Fel y soniwyd gynnau, mae yna ddau brosiect y bydd y grŵp addysg a hyfforddiant yn edrych arnyn nhw i gychwyn, ac maen nhw'n edrych ar y ddwy agwedd yna. Os caf i ddelio ag ymwybyddiaeth y cyhoedd i ddechrau, mae'r tîm prosiect sy'n cael ei arwain gan Dr Huw Pritchard o Brifysgol Caerdydd yn mynd i fod yn edrych ar yr holl gwestiwn o sut mae gwybodaeth y cyhoedd am y gyfraith yn cael ei meithrin a pha fath o ddulliau sydd yn bodoli er mwyn addysgu’r cyhoedd am y gyfraith. Nawr, mae hwn yn bwnc enfawr a llydan iawn, ac mae ein hadnoddau ni'n golygu na fyddwn ni ddim yn mynd ati, er cymaint yr hoffem ni, i allu cynnal rhaglen o'r fath. Serch hynny, mi fyddwn ni'n gobeithio edrych i weld beth yw'r arfer da mewn llefydd eraill. Wrth gwrs, mi gollodd y Senedd y cyfle i wneud rhywbeth am hyn pan benderfynwyd peidio â deddfu er mwyn cynnwys yn y cwricwlwm addysg wybodaeth am y setliad datganoli ac ati. Dyna ni, mae hynny wedi mynd nawr, ond gadewch inni edrych i weld beth arall sydd yn bosibl.

Ond os trown ni at ymwybyddiaeth y proffesiwn, mae hwn yn bodoli ar sawl lefel, a dwi'n credu mai'r lefel fwyaf pryderus ydy diffyg ymwybyddiaeth o'r ffaith bod yna wahaniaeth o gwbl rhwng Cymru a Lloegr. Mae'r rhagdybiaeth fod yr hyn sydd yn wir yn Lloegr yn mynd i fod yn wir yng Nghymru, ac fel arall rownd, yn rhagdybiaeth sydd yn parhau mewn llawer o gorneli o'r proffesiwn. Nawr, mae rhan o hyn yn ddibynnol ar y ffaith bod y rhan fwyaf neu nifer fawr o'r rhai sydd yn ymarfer y gyfraith wedi eu cymhwyso fel cyfreithwyr cyn bod y setliad datganoli wedi dod i fodolaeth, ac mae hyn yn ymwneud ag addysg barhaol, ond dwi'n credu bod yna rai egwyddorion y byddai'n werth inni eu gosod, a, gyda chaniatâd fy llywydd fan hyn, dwi'n tynnu fy het a dwi'n mynegi fy marn os liciwch chi.

Diolch yn fawr iawn. Thanks so much for that answer. It takes us into areas that both Rhys and Alun want to explore a little bit further in terms of not only continuing professional development for those within the sector, but also the curriculum and so on and legal education. Rhys, could I hand across to you there to take it on? And then I'm sure Alun will want to chip in as well.

Diolch yn fawr, Gadeirydd. Os gallaf i fynd gam yn ôl yn gyntaf, dwi'n credu roeddwn i yna pan wnaethoch chi'r araith yn 2017 o blaid sefydlu'r cyngor, a dwi'n falch iawn bod y cyngor wedi ei sefydlu. Ond beth yw'ch pryder mwyaf chi ynglŷn â llwyddiant y cyngor yma?

I suppose my biggest concern is that we should not raise expectations that we can't fulfil, which is what I was anxious to foreshadow in my opening remarks. We are limited in resources and not just financial resources, but in manpower, womanpower, but I think there is a great deal that can be achieved by a deliberative forum bringing together the different elements of the legal system to discuss common problems and to propose solutions. We will not always have the power to implement those solutions ourselves. Maybe we will in some areas. The law schools will certainly be able to adopt a baseline curriculum in Welsh law. The Judicial College will be able to ensure, as it is currently doing, that judges are trained in having a full knowledge of Welsh law. At the moment they have a programme going in relation to residential tenancies, where of course the law in Wales is now completely different from that in England. There are other areas in which we would not have any powers of implementation at all, and would be dependent on others to do that. I think it would be useful to have this deliberative forum, but my biggest concern is that expectations should not be raised to a pitch where we will simply not be able to fulfil them.

Diolch yn fawr. Pryder arall oedd gen i yn ystod eich datganiad agoriadol oedd y ffordd mae'r cyngor yn cael ei gefnogi a'i ariannu. Rwy'n siŵr ein bod ni'n ddiolchgar iawn am gefnogaeth cyngor y cyfreithwyr, ond am ba hyd mae'r gefnogaeth yna?

The Law Society?

The Law Society. Am ba mor hyd mae'r gefnogaeth yna, a beth yw'r cynlluniau ar ôl hynny?

We are, as I've said, very grateful to the Law Society for the initial support that it has provided. It has indicated that that support will be available at least for the initial year of the council. Beyond that, we simply don't know. We did wonder whether we should have any funds of our own at all, and we decided that it would be necessary to have limited funds in order to deal with things like public liability insurance, and so on. That funding is coming in from some of the organisations represented on the council and its executive, but we're talking about very limited sums of money in the scheme of things, and it's not suggested that we should have a large budget to be able to carry out the implementation of proposals ourselves. We will have to look very carefully at how it's going to be funded in the future.

Oes yna gynllun, dywedwch, pe byddai Cymdeithas y Cyfreithwyr yn tynnu ei chefnogaeth o fewn y flwyddyn? Sut bydd y cyngor yn gallu cael ei gefnogi i'r dyfodol i wneud y gwaith arbennig ŷch chi wedi'i drafod yn barod?

I don't think that there's any possibility of that support being withdrawn during the first year. I'm hopeful, but no higher than that. I'm hopeful that the Law Society will continue to support us. The support that we've received is not so much in financial terms as the support of their secretary in Wales and his staff, who've been able to prepare papers for meetings, and this sort of thing, and played an important role in that way. So, we're not talking about the need for vast resources there. Should the Law Society not be in a position to continue to support us, a limited amount of funding would, I expect, I would hope, be available from other bodies represented on the council.

Diolch yn fawr. Roeddwn i'n mynd i droi at yr Athro Emyr Lewis ar addysg gyfreithiol. Dwi'n cofio eich araith chi yn 2017; y ddwy brif gonsýrn oedd hygyrchedd cyfraith Cymru—pobl yn ymwybodol o gyfraith Cymru—ac hefyd deunyddiau trwy'r iaith Gymraeg. Un consýrn sydd wedi cael ei godi dros y blynyddoedd yw diffyg cydweithio rhwng ysgolion y gyfraith. Ydy'r cyngor yn mynd i arwain at wella'r cydweithio rhwng ysgolion y gyfraith? Rŷch chi wedi rhoi dwy enghraifft i ni; ydy hynny hefyd yn wir ynglŷn â deunyddiau trwy gyfrwng yr iaith Gymraeg?

Mae hwnna'n codi nifer o bwyntiau, ond efallai jest i ychwanegu rhywbeth at yr ateb yma rŷch chi newydd ei gael am barhad y gwaith, un o'r pethau gwirioneddol bositif ynglŷn â sefydlu'r cyngor yma ydy ei fod wedi bod yn gatalydd i ddod ynghyd â phobl oddi mewn i wahanol adrannau'r gyfraith sydd â diddordeb ym maes cyfraith Cymru. Fel rydych chi'n gwybod, mae'n chwaraeon lleiafrifol, yn parhau, ond yn hanfodol bwysig. Felly, cyn sefydlu'r cyngor, gofynnodd yr Arglwydd Lloyd-Jones i mi a fuaswn i'n cynnull cyfarfod o gynrychiolwyr o'r gwahanol ysgolion cyfraith, ac mi siaradais i â phob pennaeth yn eu tro ar y pwnc yma. Mae pobl yn awyddus iawn i gydweithio. Dwi'n credu bod yna gynseiliau ardderchog wedi eu gosod gan rai o'r ffyrdd mae'r Coleg Cymraeg Cenedlaethol wedi mynd ati i sianelu brwdfrydedd ysgolheigion unigol mewn gwahanol brifysgolion i gydweithio ar brosiectau fel gwerslyfrau, deunyddiau, ac ati. Felly, yn sicr, ar lefel wyneb y graig, y rhai sy'n dysgu, mae yna awydd i gydweithio ac i barhau â'r cydweithio fan hyn. Dwi'n obeithiol y bydd hynny'n digwydd. Mae'r dasg sydd gennym ni'n un benodol iawn, sef sefydlu'r waelodlin ar gyfer y cwricwlwm. Ond, tu fas i'r cyngor, os liciwch chi, dydy sefydlu gwaelodlin jest ddim yn ddigonol, mae angen cymryd camau pellach. Ac mae hynny'n mynd i fod yn gwestiwn, mewn ffordd, i'r ysgolion cyfraith unigol ac i'r sefydliadau maen nhw'n rhan ohonyn nhw i ba raddau y gallwn ni drosglwyddo'r ddysg yma ar sail cydweithio fel bod pawb yn cael y fraint o gael arbenigwyr ar gyfraith tai Cymru, arbenigwyr ar gyfraith addysg neu ofal Cymru yn eu dysgu nhw, gobeithio.

Diolch yn fawr, Athro Lewis. Efallai hwn i Dr Nerys Llewelyn Jones nawr hefyd, ac mae'n cydblethu'r addysg a'r ffyrmiau. Bu i ni i gyd groesawu cyhoeddiad y Llywodraeth yr wythnos ddiwethaf ynglŷn â phrentisiaethau lan at lefel 5, a holais i'r Cwnsler Cyffredinol yr wythnos diwethaf ynglŷn â pham dydyn ni ddim yn mynd lan at lefel 7, fel sy'n digwydd yn Lloegr, a beth yw cynlluniau'r Llywodraeth ynglŷn â mynd lan at lefel 7. Cefais i ddim wir ateb pendant oddi wrtho fe, mwy o ateb gwleidydd nag ateb cyfreithiwr, o bosib. Ond beth yw eich barn chi ynglŷn ag ehangu'r prentisiaethau lan at lefel 7? Gwn, o brofiad personol yn ddiweddar, am ffyrmiau yn y gorllewin a'r gogledd yn hysbysebu am bobl i ddod i weithio iddyn nhw a neb yn trio. Ydych chi'n gweld rôl am ehangu lefelau'r prentisiaethau fel modd o ddiwallu'r angen yna? Ac wedyn beth yw rôl y cyngor yn hynny o beth? Ydy'r cyngor yn gallu bod yn rhyw fath o fudiad pwyso neu fudiad lobïo ar ran y proffesiwn i'r Llywodraeth?

Diolch. Mae'r prentisiaethau, yn amlwg, yn elfen bwysig iawn i ni o ran dyfodol y proffesiwn, ac rydyn ni'n croesawu'n fawr y penderfyniad cafodd ei wneud i fuddsoddi yn hwnna i lefelau 4 a 5 fel bod pobl yn gallu cymhwyso nawr fel paragyfreithiwr neu baragyfreithwraig—felly, dechrau'n 18 a gweithio trwyddo i'r lefelau hynny. Ond, wrth gwrs, yn amlwg, mae yna lefel 6 a lefel 7 i gael, a dyna beth fyddai'n galluogi pobl i gymhwyso fel cyfreithiwr neu gyfreithwraig yn llawn. Felly, yn sicr, mae hynny'n ddarn o waith y bydd y grŵp dwi'n ei gadeirio o fewn y cyngor yn edrych ymhellach arno, ac efallai helpu gyda pheth o'r dystiolaeth tu cefn i hynny, ar sut mae hwnna efallai'n gallu dylanwadu ar nid yn unig annog talent i mewn i'r proffesiwn o fewn Cymru ond hefyd er mwyn cadw'r talent hynny hefyd yng Nghymru i'r dyfodol, achos fel rydyn ni'n gwybod, roedd yn un o argymhellion comisiwn Thomas hefyd, i edrych ar ddatblygu prentisiaethau lan hyd lefel 7.

Diolch yn fawr. Diolch yn fawr, Gadeirydd.

Excellent. Thank you very much. Alun, we'll come to you.

I'm grateful to you. Thank you. In many ways, you've been discussing and debating the issues that are of greatest concern to me. One of the really shocking things that we were told by Lord Thomas when he appeared before the committee was about the understanding of Welsh law, because we've discussed awareness and accessibility already this afternoon. My concern, and I think the point he was making, is that you have both solicitors and barristers who quite often are not fully aware of where Welsh law stands on a number of different issues. But he also he made the point, which I found really very shocking, that judges weren't always quite sure either, and that there was this enormous confusion within the profession about the place of law. The committee has debated and discussed over the last period that the confusion of where Welsh law is created by Westminster sometimes acting for the Senedd and the Senedd sometimes then amending Westminster legislation in its own right means that those two routes lead to a great deal of potential overlap and confusion. I'd be interested to know whether the panel agrees with Lord Thomas's view on that—I hope I'm not misquoting him—but also, how do we address these issues and how do we actually solve this problem, if it is a serious issue.

I should say that I'm not aware personally of any instances in which a judge has not been aware that the law of Wales, in relation to the particular subject matter of the case, is different from that of England. I'm not aware of any such case, although Lord Thomas may well be. But, there have been instances in which legal representatives have, I'm afraid, not been aware of the fact that the law in Wales is different, and this can happen in a number of different areas as the divergence between English law and Welsh law increases and accelerates. This is part of the reason for wanting to create the council in the first place—to improve public understanding and the understanding within the professions, including the judiciary, of the existence and importance of the different body of law applicable in Wales. The focus from the very start was intended to be in relation to legal education and training, and, of course, continuing legal education is particularly important.

I should say that the Judicial College has been very active in organising seminars, particularly recently in relation to residential tenancies, where the law in Wales is now wholly different from that enforced in England, due, I might say, to a Law Commission recommendation nearly two decades ago that was not taken up in Westminster, but that, through the wisdom of the Senedd, has now been implemented in Wales. Wales, I hope, will become the envy of England when the system is fully implemented. The Judicial College has done a great deal in order to educate the judges in relation to these matters, which, of course, are the staple diet of the work in the county court.

Alun, are you happy with that? Do you want to go through any other areas as well? If you want to, by all means.

I'm just interested as to how we can bring the profession together in order to address some of these issues. I think some of the issues are structural, because I think having two Parliaments creating laws in the same place on the same subjects in the same fields is always going to be a difficulty, but I think that's probably an issue for us, not for the panel. I'm interested, therefore, in the role of the law council in developing that wider understanding and whether it sees its role as being one that is around simply the profession, or if it sees its role as being a wider role, if you like, providing opportunities for understanding for wider society.

Yes, we do see a role in both areas. So far as the professions are concerned, there is a role of co-ordination, which I think can be very valuable. To go back to the example of residential tenancies, it's necessary to educate judges and legal practitioners in this new body of law. There is likely to be a huge duplication of function—reinventing the wheel at every stage—and it's my hope that there can be a high measure of co-ordination. There's a limit, of course, to what the Judicial College can do. The Judicial College can't train anybody other than judges, but it ought to be possible to pool resources in terms of texts and materials that can be used for teaching that might also be used in law schools. So, in that way, I think a valuable contribution can be made. More generally, there is an important role to be played in the education of the public at large, and that comes back to the wider question of the understanding of Welsh law.

Okay. I'm grateful to the panel for that.

Thank you, Alun. Thank you very much. We've probably got just short of 15 minutes remaining. I wonder if we can move on to the area of the economic importance of the legal sector and what the legal sector can do to actually support the economy as well. I'm going to hand over to Peter and then to Alun for some linked pieces on this. But, Peter, over to you first.

Thank you, Huw. I suppose I would just be very interested in your perspectives of how you see the law council helping small to medium-sized law firms in their development. How do you feel you would be able to support them in their development?

I have to leave it to my colleagues on that particular question; each of them has particular practical knowledge from experience of these matters, and I don't. I think Nerys, probably.

Mae'r rhain yn faterion byddwn ni'n edrych arnyn nhw fel rhan o'r grŵp ar wasanaethau cyfreithiol, ac yn sicr beth dydyn ni ddim eisiau gwneud yw ail-wneud gwaith sydd wedi cael ei wneud yn barod, ac yn amlwg fe wnaeth gwaith y comisiwn ar gyfiawnder greu sawl argymhelliad ar hyn yn benodol, ac yn yr adroddiad mae yna strategaeth ar gyfer sut y gellid cefnogi busnesau sydd wedi'u sefydlu a'u lleoli yng nghefn gwlad Cymru a hefyd yn yr ardaloedd ôl-ddiwydiannol hefyd.

Felly, beth sy'n bwysig yw ein bod ni'n adeiladu ar y gwaith sydd wedi cael ei wneud yn barod fel rhan o hwnna, a rhan allweddol o'r gwaith byddwn ni'n ei wneud fel grŵp fydd edrych ar yr argymhellion hynny gafodd eu gwneud nawr bron tair blynedd yn ôl, ac ystyried a ydy'r rheini nawr bellach yn berthnasol i ni, gan ystyried y newidiadau sydd wedi digwydd yn ystod y tair blynedd diwethaf, gyda defnydd mwy eang a mwy dwys yn cael ei wneud o dechnoleg, er enghraifft, ac efallai'r pethau sydd wedi newid o fewn y diwydiant a'r sector oherwydd hynny hefyd.

Felly, byddwn ni'n gweithio ar hynny ac yn edrych ar yr argymhellion hynny yn fwy manwl, ac edrych ar sut gallwn ni, efallai, ddatblygu cynllun mwy gweithredol a fyddai yn ein galluogi ni i gefnogi hwnna ymhellach. Felly, y mathau o bethau sy'n cael eu cynnwys yn hwnna yw cefnogi a siarad amboutu mentora a gwella rhwydweithiau, achos rŷm ni'n gwybod os yw'r economi yn gwneud yn dda, mae'r sector gyfreithiol yn gwneud yn dda, ac mae hynny eto yn un o'r canlyniadau a phethau a gafodd eu darganfod fel rhan o'r gwaith gyda'r comisiwn.

Felly, beth sy'n bwysig yw adeiladau ar y pethau yna sydd wedi eu hargymell fanna, a byddwn ni'n edrych ar hwnna—nid, efallai, cyflawni'r gwaith yna, os leiciwch chi, ond efallai helpu gyda syniadau ar sut efallai gallwn ni ddatblygu hwnna ymhellach a'i wneud e'n berthnasol ar gyfer y sector fel mae hi ar hyn o bryd.

Yes. Well, thank you for that. Oh, sorry, Professor Lewis, do you want to—? No. Well, linked to, then, support, have you got any views of the effectiveness of Wales's Government in supporting the legal sector in Wales? Has it been positive, or can they do more?

Eto, rwy'n credu bod hwn yn rhywbeth gafodd ei edrych arno gan y comisiwn hefyd, adroddiad Thomas; mae yna argymhellion yn ymwneud â chefnogaeth ar gyfer busnesau yng nghefn gwlad. Dŷn ni fel cyngor ddim yma i ddweud beth ddylai'r polisïau economaidd fod o ran Llywodraeth Cymru i'r dyfodol, ond yn amlwg bydden ni efallai yn gallu awgrymu pethau fyddai o fudd neu o ddefnydd er mwyn gwella rhwydweithiau, er mwyn helpu gydag olyniaeth—mae hwnna'n un o'r pethau pwysig hefyd o ran y busnesau hynny er mwyn cadw'r dalent hefyd sydd ei hangen arnyn nhw er mwyn datblygu i'r dyfodol—ac er mwyn efallai hefyd ddatblygu eu defnydd nhw o dechnoleg, ac nid yn unig siarad amboutu technoleg arloesol, ond hefyd technoleg bydden ni'n cyfeirio ati fel y dechnoleg orau sydd ar gael, efallai, neu'r best available technology: edrych ar beth sydd ar gael ac sydd ddim efallai yn cael ei ddefnyddio yn y ffordd y gallai fe. A dwi'n gwybod bod yna brosiect ar hyn o bryd gyda Llywodraeth Cymru yn cynnig arian er mwyn gwella'r security sydd gyda chwmnïau cyfreithiol a beth maen nhw'n defnyddio ar gyfer hwnna, gan fod hwnna'n un o'r sialensiau mwyaf maen nhw'n ei hwynebu ar hyn o bryd ar yr ochr dechnoleg o bethau.

Thank you for that. Also, I suppose it leads me on to my next question. I know one of Lord Thomas's commission's recommendations was that Welsh Government and practitioners and law schools should work together to create a strategy for law in Wales. Have you got any views on that, or do you agree with that?

Dwi'n credu ei bod hi'n bwysig gwahaniaethu rhwng—er eu bod nhw ynghlwm, mae'r gwahaniaeth yn bwysig—polisi economaidd sydd ynghlwm â busnes cyfreithiol a materion sydd yn fwy o gonsýrn i ni, fel mynediad i gyfiawnder sydd yn ddibynnol ar, wrth gwrs, fynediad i gyngor. Mae'r math o bethau mae Nerys wedi bod yn sôn amdanyn nhw yn hanfodol er mwyn gallu cynnal hyfywedd y sector gyfreithiol oddi mewn i ardaloedd llai breintiedig neu fwy anhygyrch yng Nghymru. Mae'r dyddiau pan oedd gan bob tref farchnad fwy nag un ffyrm o gyfreithwyr a'i llys wedi mynd, yn anffodus, ac mae hynny yn fater rydyn ni—. Mae'r gwaith mae Nerys a'i grŵp yn ei wneud, yn amlwg.

Mae cwestiynau ehangach ynglŷn â chyfraniad y sector gyfreithiol i economi Cymru. Y math o syniadau sydd wedi bod yn cael eu crybwyll ynglŷn â thyfu Caerdydd, er enghraifft, fel canolfan ar gyfer cyfraith fasnachol, yn denu pobl o wahanol rannau o'r byd dwi'n credu yn mynd ymhellach nag y byddai'r cyngor yn gysurus yn gallu ei wneud, o ystyried pwy sydd yn ymwneud â'r cyngor. Nid bod y pethau yma ddim yn bwysig, ond rwy'n credu eu bod nhw tu hwnt i'n gafael ni, felly.

Yes. Thank you.

Could I just add there, Chair, if I may, that, clearly, there's an interdependence between the prosperity of the legal community and the Welsh economy generally? Economic policy of the Welsh Government is clearly not a matter for the law council. We will certainly seek to support the legal sector in Wales, and, if we're able to do that and if we improve efficiency of legal businesses, that will, we would hope, have a beneficial effect on the economy generally. But one thing does strike me in relation to this, and that is the importance of accessibility of the law, to come back to that. It's very important that the law is accessible if it's going to attract investment in Wales.

Yes. Thank you for that. I think that's covered my points, Chair.

Thank you, Peter. Before I hand to Alun, I'm very taken with the relationship of this discussion to some of your opening remarks, where you stressed that very much the law council would want to develop its work as an independent voice from Government, but also in close collaboration with Government, and that probably reflects in some ways quite a neat, light-touch approach—that you're part of the conversation, you want to be in there, trying to help feed back to Government how things are going with the profession, with the sector, with accessibility to law and so on, but it's not for you to tell them policy, it's not for you to sort their resources and their Government priorities out. But, in this particular aspect, when the Thomas commission itself has highlighted the thin spread of legal advice in certain parts of Wales—in the disadvantaged communities, in rural areas and so on—how does that work within that dynamic of the independent voice of yourselves and your members, but also that close engagement with Government? How does it work? Do you sit down and discuss this with Ministers and say, 'Well, Ministers, you need to do a little bit more, in our humble opinion, to get the priorities that you want and the Thomas commission has stressed as well'?

Well, we'll have to see how this evolves, but there are clear limitations on what this council can do, not least because of the involvement of the judiciary. We're not going to be able to embark on anything that's politically controversial—that's clear.

No, that's fair enough.

But I should make it clear that, so far, we've been working in close collaboration with the Counsel General and officials within the Government. We're hugely grateful to them for their support. The three meetings that have so far been held of the executive of the law council have all been addressed by the Counsel General. On each occasion, there's been an opportunity for him to be questioned by members of the executive, and for him to hear the observations that they make in relation to the particular matters that he's raised. His briefing of the council is very valuable. The discussions that have followed have, I think, been particularly useful and of high quality, and so it's an important channel of communication.

That's very interesting. And do you see this—? I'm going to bring Rhys in in a moment, but does this reflect a model you would see elsewhere within the UK?

I'm not aware of a model that is exactly like this. There is the Scottish joint committee on education, which was, in a sense, the inspiration for the original idea, but what has happened is that this had grown considerably beyond the original proposal. The original idea was that it should be limited to legal education and training. I'm not sure to what extent the Scottish Government is involved in the joint committee in Scotland. It may well be that, if you've got a body that is simply concerned with legal education and training, it would be desirable to have the Government directly involved in that. But this has grown into something rather wider, and it was thought by all concerned that it was appropriate for the Government to be at a slight distance. But that, of course, is not intended to prejudice in any way the degree of collaboration.

Very interesting. Rhys.

Diolch yn fawr, Gadeirydd. Dwi'n falch iawn o glywed am y cydweithio agos. Fe wnaeth y Cwnsler Cyffredinol sôn am hynny yn Plenary yr wythnos diwethaf—ei fod e wedi bod i bob un o'ch cyfarfodydd ac yn falch iawn am y cydweithio agos gyda swyddogion. Ond beth am y ddeddfwrfa? Beth am bwyllgor fel hyn? Pa rôl hoffech chi i'r ddeddfwrfa a phwyllgor fel hyn ei chael gyda'ch cyngor chi, oherwydd mae yna fwy i'r Senedd, wrth gwrs, y dyddiau yma na jest y Llywodraeth? Beth yw ein rôl ni fel Aelodau, a'n rôl ni fel pwyllgor, yn gweithio gyda chi?

Well, of course, it's early days. We're only in the process of setting up the council at this stage. Can I say that, at this stage, we welcome the opportunity to come before you today to be able to tell you what we're trying to do and how we're setting about it? And equally valuable is the communication in the opposite direction, that we can hear what are your concerns and particular interests, which will inform the work of the council in due course, I'm confident.

Diolch yn fawr. Alun, just before we wrap up this very useful session, is there anything else that you wanted to add to this?

No, I'm very content with the answers we've received.

Thank you, Alun, very much. Could I just, then, as we close, in thanking you for coming in front of us today—and it really has been a very informative session—just ask you how you want to keep the wider sector, but also the public and interested parties, up to date with the work that you're doing? Clearly, we'd want to continue some sort of engagement with you as a committee to do our part in feeding back to you, as we've just said, but also to allow you the opportunity to lay out how you've done in months to come and years to come. But, beyond that, how will you communicate with the wider interested parties out there?

Well, we are receiving some public relations advice, pro bono, at this stage, and it's one of the limited matters that I had in mind when I mentioned the resources that are being raised. And it's our hope that we will be able to communicate directly in various ways, and we'll be advised in relation to that in due course. But, equally, it would be particularly valuable if we were able to communicate through the channels available to this committee, and we would appreciate that enormously.

Well, we will definitely take up that and respond positively to that suggestion.

Thank you.

Is there anything else that any of our witnesses would want to add? No. And, colleagues, are you content with that? Well, thank you very much, the Rt Hon Lord Lloyd-Jones, Professor Emyr Lewis and Dr Nerys Llewelyn Jones, as well. Thank you so much for your time today. I know how busy you all are, but that has been illuminating for us as a committee, and we wish you very well in the months and the years ahead as well. I think that this is a very interesting innovation and we have great hopes for it, although we recognise what you've said from the outset in your opening remarks—that you are cautious in what can be achieved and the expectations of you as well. But we are hopeful as well. So, diolch yn fawr iawn. We will send, by the way, a transcript to you for accuracy and for your checking, of course, and if there's anything that you want to follow up with us, by all means do as well.

We will take a short break now and then reconvene in 10 minutes. Thank you very much indeed.

Croeso nôl, welcome back, to this afternoon's session of the Legislation, Justice and Constitution Committee. We've just finished our session, just before the break, with our witnesses, but we now turn to our normal business, and we've got quite a bit ahead of us today. We're going to start with our instruments that we've had since the last committee meeting, and we'll begin with instruments that raise no reporting issues under Standing Order 21.2 or 21.3. And the first of these is item 3.1, SL(6)197, the Regulated Services (Annual Returns) (Wales) (Amendment) (Coronavirus) Regulations 2022. Now, Gareth—. No, sorry, my apologies—turning to my right here. We don't have any items to note from this, any reporting points on this.

No.

No. Thank you very much. So, if we're happy to note and agree that—we are—we'll then go on to item 3.2, SL(6)199, the Education (Student Finance) (Miscellaneous Amendments) (No. 2) (Wales) Regulations 2022. Again, we have no points that our lawyers have identified for reporting on this. Are we happy to agree that? We are.

On to item No. 4, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, and the first of these is a made negative resolution instrument, item 4.1, SL(6)190, the Agricultural Wages (Wales) Order 2022. And we have, in our papers, a draft report under paper No. 3. So, this Order revokes and replaces the Agricultural Wages (Wales) Order 2020, with changes including a new grading structure and minimum hourly rates of pay for agricultural workers. Now, our lawyers have identified two technical and one merits point for reporting. We have not, though, had a Welsh Government response yet. Do you want to fill us in on this one, please?

Yes, just to say we have had the Welsh Government response within the last 10 minutes or so, so we'll bring that back to consider at a later meeting, if that's okay with you.

Okay. That's great. So, we will bring that back, and we will bring that back to the next meeting for discussion, yes?

Yes. So, I'll just go through the reporting points now for you.

That would be brilliant. Go ahead, please.

So, the first technical reporting point is that the instrument appears to have retrospective effect, where the authorising enactment does not give express authority for this. So, the Order was made on 31 March 2022, it came into force on 22 April 2022, but it takes effect from 1 April 2021, and this means that agricultural employers may be required to make back payments to their employees, and so the Welsh Government has been asked to respond on that point.

The second technical reporting point relates to the Agricultural Sector (Wales) Act 2014, under which this Order was made. Section 3(5) of that Act provides that no minimum rate of remuneration may be specified in an Order that is less than the national minimum wage. The national minimum wage increased, with effect from 1 April 2022, which was the day after the Order was made, but before the Order come into force, and so, in those circumstances, the Welsh Government has been asked to clarify its rationale for considering that section 3(5) of the 2014 Act is satisfied.

The third point, then, is a merits reporting point, which also relates to the increase in the national minimum wage. As a result of the increase from 1 April 2022, there is no difference in the minimum rates of pay between several of the new grades of agricultural worker established by the Order, and this is because the national minimum wage overrides the minimum rates of pay set out in the Order. The draft report notes that this may act as a disincentive to progression in the short term, and there's no indication in the explanatory memorandum of when the next agricultural wages Order might be made to ameliorate this issue. And, again, a Welsh Government response has been requested on that point. There is also one additional merits point that's not mentioned in the report yet, and so, if you're content, we could add this in later, and that is that the explanatory memorandum is not available in Welsh.

Ah, right, okay. And I wonder, do we know how often these are normally updated? We've had a two-year gap now. Is it normally annually?

It's generally annually. They do appear to have been made annually in the past since the Act came into force. This one, there was some delay, so it was originally intended to come into force by 1 April 2021.

Okay. And I note that we have a former agriculture Minister here sitting on the committee as well, who's had great involvement with this. Okay, so we will wait for the analysis of the Government response, then, in next week's meeting, but, for the moment, are we happy to note those reporting points? We are. Thank you very much.

It takes us on to, then, item No. 5, instruments that do raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that we have previously considered. And the first of these is item 5.1, SL(6)175, the Renting Homes (Deposit Schemes) (Required Information) (Wales) Regulations 2022. We considered this instrument at our meeting on 28 March 2022, and we laid our report the next day. So, I'd invite Members to note the Welsh Government response to the report that has since been received. Is there anything in particular to note on this? Nothing. Nothing. There we are. Are we happy, then, colleagues, to just note that? We are. Thank you.

Item 5.2, SL(6)178, the Renting Homes (Safeguarding Property in Abandoned Dwellings) (Wales) Regulations 2022. And, again, we considered this instrument at our meeting on 28 March 2022. We laid our report the next day and, again, we've had the Welsh Government response to the report, which has been received. I'm assuming there's nothing else of note on this. So, again, are we happy to just note that? We are. Thank you.

And we'll go on to item 5.3, SL(6)177, the Renting Homes (Review of Decisions) (Wales) Regulations 2022. And, again, it's in relation to the Welsh Government response, which we have since received after we discussed this on 28 March 2022 and laid our report. Again, nothing of—

There is one point—

Aha, right.

—just to draw your attention to on this one. It relates to the Welsh Government response on regulation 9, which relates to oral hearings in respect of a review of a decision to end an occupation contract. The committee's report noted that, under regulation 9(a), where the contract holder fails to attend the hearing, the landlord has the option of proceeding with the hearing without the contract holder being present and without requiring the landlord to take account of the circumstances of the contract holder's absence. The Welsh Government's response was that that is not the correct interpretation of regulation 9(a) and, rather, that regulation 9(b) enables the reviewer to exercise their discretion as to whether the hearing should go ahead, be conducted by other means, or be rearranged if the person undertaking the review is aware of any circumstances that might account for the absence of the contract holder. And we would just draw Members' attention to the fact that, as drafted, it's not completely clear that the requirement in regulation 9(b) to take account of all relevant circumstances also applies to regulation 9(a), because the two provisions are separated by the word 'or'. But we consider that this may be a formatting issue, and so we've informally drawn it to the attention of the Welsh Government to seek clarity from them as to whether that is a formatting issue.

Okay. Well, that's excellent. And we would be hopeful, if we've raised that informally, of some response from them as to whether they're going to adjust that.

Yes, once they've come back to us to confirm whether it is a formatting error, we can address it at that point.

That's brilliant. Thank you very much for that. Really helpful. Are we happy, then, with those observations, to note the fact that we've had the Welsh Government response to the report? Yes, we are.

Okay, and then we're on to item No. 6, our regular update on the inter-institutional relations agreement, and the first item on this part of the agenda is item 6.1, correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd in respect of the Animal Welfare (Miscellaneous Amendments) Regulations 2022. So, we note the letters from the Minister informing the committee and the Economy, Trade and Rural Affairs Committee that she's given consent for the UK Government to make those Animal Welfare (Miscellaneous Amendments) Regulations 2022. Unless there are any observations from colleagues, we're happy to note that. We are. Good.

Item 6.2, then, is correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd in respect of the Common Agricultural Policy (Cross Compliance Exemptions and Transitional Regulation) (Amendment) (EU Exit) Regulations 2022, and that informs the committee that she has given consent for the UK Government to make the common agricultural policy et cetera EU exit regulations 2022. We're happy to note that. We are, thank you.

We move on to item 6.3. We draw the committee's attention to the letter and the written statement from the Minister for Finance and Local Government informing Members that she's given consent for the UK Government to make the Public Procurement (International Trade Agreements) (Amendment) Regulations 2022. So, again, that's simply to note, if Members are happy.

We're going to go on to item 6.4, the written statement and correspondence from the Deputy Minister for Climate Change in respect of the Phytosanitary Conditions (Amendment) (No. 2) Regulations 2022. She's informed members of the committee that she has given consent for the UK Government to make and lay those regulations. Again, are we happy to note? We are.

And then finally on this particular section on the agenda, item 6.5, correspondence from the Minister for Climate Change in respect of the inter-ministerial group on net zero, energy and climate change. We have a letter informing the committee, and the Climate Change, Environment and Infrastructure Committee, of an upcoming meeting of the inter-ministerial group on net zero, energy and climate change scheduled for 11 May. So, again, we're happy to note that? We are.

Okay, and then we move on to item No. 7, which is our papers to note. As per normal, I'll run through these at breakneck speed unless there's something that Members want to flag up, but we can of course return to these in private session as well. So, the first of these that I'll ask Members to note is the response from the Minister for Economy to the committee's request for clarification on whether the Welsh Government was consulted in the development of this international agreement. Now, we can return to this in private. I don't know if there's anything that we want to raise particularly at this moment, at this juncture? No. We're happy to note that.

Then we have—I draw attention to—the letter from the Counsel General and the accompanying guidance to help those developing policy for Bills. That's under item 7.2, Welsh Government guidance on 'Common Legislative Solutions: a guide to tackling recurring policy issues in legislation'.

Then, item 7.3, we have correspondence from the Deputy Minister for Arts and Sport and the Chief Whip in respect of the Cultural Objects (Protection from Seizure) Bill. The Deputy Minister has given us a response to our letter seeking further information on inter-governmental relations during the development and passage of that Bill.

And then, item 7.4, I draw your attention to the written statement from the Minister for Economy, with an update on border controls, providing Members with an update on those border control posts from 1 July 2022. And, of course, if you recall, the Minister made an oral statement on the issue on 3 May.

And then, item 7.5, we have correspondence from the Counsel General and Minister for the Constitution, with an update on the flexible voting pilots, in response to our committee's request on that. That brings us to the end of those correspondence items to note, all of which, of course, we can return to, if needed, in private session.

Item No. 8, then, we get to that point now where, under Standing Order 17.42, I ask committee members whether they're happy to exclude members of the public now so that we can go to the rest of our business in private. Are we happy to do so? We are. We'll go into private session, and we'll wait for the signal that we are in private.