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.

Thank you very much for your invitation. It's a pleasure to be with you this afternoon.

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.

Thank you very much. They are very probing questions, and important questions, and if I could just begin by—. There is a connection, of course, between accessibility and awareness, but just to expand a little on what Lord Lloyd-Jones said now, public accessibility depends to a great extent on the public getting a hold of the law and understanding it. There's no expectation for the public to be able to do the kind of archaeological work that lawyers do on a daily basis to find the right law.

But there are things that have been done that are to be welcomed. I am thinking in particular of what the Welsh Government did during the coronavirus pandemic, which is, of course, ongoing, in terms of ensuring that what the public saw in terms of the current regulations was summarised, so we could see exactly the text that was in force through the use of tracked changes—something simple that has existed for decades, but for some reason there's been some reticence in the corridors of power in terms of using this—and also a summary in more accessible language, perhaps, to accompany that in terms of the situation from time to time. And these changes were made promptly and well, and I think that's one way forward—I know that a great deal of Government resources went into this—to foster that kind of approach. In the same way, legislation.gov.uk now ensures that Welsh constitutional statutes are kept up to date. There was a time when they weren't, but they have improved that a great deal.

If we look at the question of awareness, again, as with accessibility, public awareness and the awareness of the profession or lawyers are two elements of this. As was previously mentioned, there are two projects that the training and education group will be looking at initially, and they are looking at those two elements. If I may deal with public awareness first, the project team that will be led by Dr Huw Pritchard from Cardiff University is going to be looking at the whole question of how public knowledge of the law is developed and fostered and what kinds of methods exist in order to educate the public about the law. This is a huge and wide-ranging issue, and our resources mean that, no matter how much we might wish to do so, we can't sustain a programme of that scale. But despite that, we will hope to look at good practice in other places. Of course, the Senedd missed the opportunity to do something about this when it was decided not to legislate to include in the education curriculum information about the devolution settlement and so on. That opportunity has gone by, but let us look at what else might be possible.

But if we turn to the awareness of the profession, that exists on several levels, and I think that the most concerning level is the lack of awareness of the fact that there is a difference at all between Wales and England. That is, the presumption that what is true in England is going to be true in Wales and vice versa is a presumption that continues in several corners of the profession. Now, some of this derives from the fact that the majority or a large number of those who practise law qualified as lawyers before the devolution settlement came into existence, and this is to do with continuing education, but I think there are some principles that it would be worth establishing, and, with my president's permission, I'm taking my hat off here and expressing my own personal opinion.

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.

Thank you very much, Chair. If I could take a step back first of all, I think I was there when you made the speech in 2017 in favour of establishing the council, and I'm very pleased that the council has been established. But what is your biggest concern regarding the success of this council?

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.

Thank you very much. Another concern that I had during your opening statement was the way the council is supported and funded. I'm sure we're very grateful for the support of the lawyers, but for what amount of time is that support available?

The Law Society?

The Law Society. How long is that support there for, and what are the plans following that?

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.

Is there a plan, for example, if the Law Society pulled their support within the year? How will the council be supported in the future to do this great work that you've discussed already?

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.

Thank you very much. I was going to turn to Professor Emyr Lewis regarding legal education. I remember your speech in 2017; your two main concerns were the accessibility of Welsh law—that people were aware of Welsh law—and also materials through the medium of Welsh. One concern that's been raised over the years is the lack of collaboration between law schools. Will this council lead to an improvement in the collaboration between law schools? You provided us with two examples; is this also true in terms of Welsh-medium materials?

That raises a number of points, but just to add something to the response that you've just received about the continuation of our work, one of the genuinely positive aspects of establishing this council is that it's been a catalyst to bring together those within different law departments who have an interest in this field. So, it's a minority sport, one might say, but it is vitally important. So, before the council was established, Lord Lloyd-Jones asked me whether we would convene a meeting of representatives of the different law schools, and I spoke to every head of department on this issue. People are very eager to collaborate. I think that there are excellent precedents established by some of the ways that the Coleg Cymraeg Cenedlaethol has gone about its work of channelling the enthusiasm of individual scholars in different universities to collaborate on projects such as teaching materials and so on, and textbooks. So, certainly, at the coalface of this work, there is a desire to continue to collaborate on this, and I am hopeful that that will continue to be the case. The task that faces us is a very specific one, which is to establish the baseline for the curriculum. But, outwith the council, establishing a baseline isn't sufficient. We need to take further steps, and that is going to be a question, in a way, for the individual law schools and the institutions of which they are part in terms of the extent to which we can transfer this learning on a collaborative basis so that everybody has the privilege of having experts on Welsh housing law, for example, or education law, or care law, teaching them, hopefully.

Thank you very much, Professor Lewis. Perhaps I should ask Dr Nerys Llewelyn Jones now as well, and it joins up the education and the firms. We all welcomed the Government's announcement last week regarding apprenticeships up to level 5, and I asked the Counsel General last week regarding why we don't go on to level 7, as is happening in England, and what are the Government's plans to go up to level 7. I didn't really get a definite answer from him, it was more of an answer by a politician, rather than a lawyer. What are your views regarding expanding apprenticeships up to level 7? I know from personal experience recently of firms in west and north Wales advertising for people to come and work for them and nobody trying for those posts. Do you see a role in expanding the apprenticeship levels to meet that demand? And then what is the role of the council in that regard? Can the council be some sort of pressure organisation or lobbying organisation on behalf of the profession to the Government?

Thank you very much. Apprenticeships are a clear element with regard to the future of the profession. We welcome very much the decision that was made to invest in apprenticeships at levels 4 and 5 so that people can qualify as paralegals—so, starting at age 18 and working through those two levels. But, of course, there is a level 6 and there's a level 7, and that would enable people to qualify as lawyers fully, as it were. So, certainly, that's a piece of work that the group that I chair will be looking at further, and will help, perhaps, with the evidence base behind that in terms of how that can influence not just encouraging talent into the profession in Wales but also to retain that talent in Wales in the future, because I know that it was one of the recommendations made by the Thomas commission, to look at apprenticeships up to level 7.

Thank you very much. Thank you very much, Chair.

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.

These are issues that we will be looking at as part of the group on legal services, and certainly what we don't want to do is duplicate work that's been done already, because clearly the work of the commission on justice created a number of recommendations on this specifically, and in the report there is a strategy for how businesses that are established and located in rural Wales and also in the post-industrial areas can be supported.

So, what's important is how we build on the work that's been done already, and a key part of what we will be doing as a group is looking at those recommendations that were made now nearly three years ago, and considering whether those are now relevant to us, considering the changes that have happened in the last three years, regarding the wider use of technology, for example, and perhaps the issues that have changed within the industry and the sector as a result of that.

So, we will be working on that and looking at the recommendations in a more detailed manner, and looking at how we can perhaps develop a more active scheme that will mean that we will be able to support them further. So, the kinds of things that we're talking about are mentoring and improving networks, because we know that, if the economy is doing well, the legal sector is also doing well, and again that is one of the outcomes that was found as part of the commission's work.

So, I think what's important is to build on what's been recommended there, and we'll be looking at that—not perhaps at achieving that work or delivering that work, but helping with the ideas and seeing how we can develop them further and make the strategy relevant to the sector as it is currently.

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?

Again, I think this is something that was looked at by the commission, the Thomas report; there are recommendations regarding support for businesses in rural Wales. As a council, we're not here to say what the economic policies of the Welsh Government should be in future, but, clearly, we would be able to suggest things that would be beneficial or of use to improve networks, in order to assist with succession—and that's important for those businesses to retain the talent that they require in order to develop for the future—and in order perhaps also to develop their use of technology, and not only talking about innovative technology, but also technology that we would refer to as the best available technology: looking at what's available that perhaps isn't being used in the way it could. And I know there's a project currently ongoing with Welsh Government providing funding for improving the security for legal firms and what they use for that, as that is one of the greatest challenges that they're facing currently on the technology side of things.

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?

I think it's important to differentiate between—even though they are linked, the difference is still important—economic policy related to legal businesses and then matters that are more of a concern to us, such as access to justice, which depends, of course, on access to advice. The kinds of things that Nerys has been talking about are vital to be able to sustain the viability of the legal sector within less advantaged or more remote areas. The days when every market town had more than one law firm and a court have gone, unfortunately, and that is a matter that we—. The work that Nerys and her group are doing is related to that.

But the wider questions in terms of the contribution of the legal sector to the Welsh economy and the kinds of ideas that have been mentioned in terms of growing Cardiff, for example, as a centre for commercial law, attracting people from different parts of the world I think goes further than the council would feel comfortable contributing to. Not that these things aren't important, but they're beyond our grasp, as it were.

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.

Thank you, Chair. I'm very pleased to hear about the close working, which the Counsel General mentioned last week. He said that he'd been to every one of your meetings, and I'm pleased to hear about the joint working with officials. But what about the legislature and a committee such as this? What role would you like the legislature and a committee such as this to have with your council, because there's more to the Senedd these days than just the Government? What is our role as Members, and our role as a committee, working with you?

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.