The Commission on Justice in Wales

Reviewing the justice system in Wales

Lord Thomas of Cwmgiedd, who is the chair of the Commission on Justice in Wales, describes its work

The background to the establishment of the Commission

In September 2017, 20 years after the Welsh devolution referendum in 1997, the First Minister of Wales, Carwyn Jones, announced that the Welsh Government was setting up an independent Commission on Justice in Wales to review the operation of the justice system in Wales and set a long-term vision for its future.

Wales once had its own system of laws and of courts. These were progressively removed, first during the conquest of Wales in the 13th century, then by the Acts of Union in 1536 and 1543 (which made the whole of Wales subject to English law), and finally through the abolition of the Courts of Great Sessions in 1830. Since that time, there has been one system of law and justice in England and Wales.

The Government of Wales Acts from 1998 to 2017 (which created the Welsh Assembly and the Welsh Government, and devolved legislative and executive powers to Wales) did not, with very limited exceptions, devolve powers in respect of justice. Welsh law made by the Assembly remains part of the law of England and Wales. The courts and tribunals remain the courts and tribunals of England and Wales, except for some devolved tribunals (such as the Mental Health Review Tribunal for Wales) which are only for Wales and under the leadership of the president of Welsh Tribunals.

The First Minister, in setting up the Commission to put Wales at the forefront of the justice and legal system, said: ‘In Wales, we have had a separate legislature for six years but, as yet, we do not have our own jurisdiction. By establishing the Commission on Justice in Wales, we are taking an important first step towards developing a distinctive justice system which is truly representative of Welsh needs.’

The work so far done by the Commission and the evidence

As Commissioners, we decided that we would first consider the state of the justice system in Wales and what needed to be done to set a long-term vision for the future; we would then consider what the best structural, governance and constitutional arrangements were needed to achieve this.

Our examination of the justice system is extensive: criminal, civil, family and administrative justice, access to justice, the legal sector, and education and training. We have received more than 150 written submissions, which are published on the Commission’s website.¹

We have met with many, both inside and outside Wales, at Commission events from Swansea to Wrexham and from London to Edinburgh; we have sought the views of practitioners and other interested parties about the operation of the justice system in Wales, and other parts of the UK, and how it should be improved. We are very grateful to all, including CILEx and individual members of CILEx who have provided submissions and attended meetings.

We have received powerful evidence about the present state of the system. The evidence in two areas may help to explain the extent of our enquiry:

Legal advice and assistance and access to justice

The evidence we have received highlights that the provision of legal advice and assistance and of access to justice in Wales has unacceptable deficiencies. For example, the withdrawal of legal aid for a large number of areas of law has created a significant void. Taking by way of illustration, Montgomeryshire and Radnorshire, two large, sparsely populated rural areas, the evidence is that just three law firms have legal aid franchises; they are based only in Llandrindod Wells and Newtown.

The evidence also highlights the ageing profile of the legal sector in the rural and post-industrial areas of Wales; this has significant implications for future provision, succession planning and the sustainability of advice services in many towns and rural areas across Wales.

The evidence also shows that many smaller firms are experiencing difficulties in attracting, training and retaining talent. Although the third sector is working magnificently and with a commitment to provide advice and assistance, the task of balancing rising demand for their services with increasing financial constraints is becoming ever more difficult.

The closures of court buildings in recent years have resulted in long-distance travelling for practitioners and their clients to attend hearings. The provision of public transport to reach court is limited, particularly in rural areas; the evidence is that closures have had a serious effect. Court closures were to be counterbalanced by state-of-the-art video-links and digital filing (see also pages 34 and 35, and pages 38 and 39 of this issue).

We have received evidence (which our own experience supports) that the video-link facilities are not sufficiently reliable to provide any real amelioration of the serious difficulties caused by court closures. Much of the evidence opposes further court closures.

In its own submission to the Commission, CILEx has, in addition to providing evidence in relation to the issues outlined regarding Wales, also pointed to the mounting pressures on the justice system in England and Wales.

Legal education and training

We have received powerful evidence that there is a need for a new approach to the teaching of law, the development of digital skills and the use of artificial intelligence and professional training in Wales. Joint working between all the universities, the professions and others must be improved. We have recently issued a discussion and consultation paper in relation to the establishment of a Law Council of Wales to ensure that these issues are addressed as soon as practicable.²

Next steps

The Commission is now going to consider the issues of structure and governance.

Should there be devolution of justice to the Welsh Government and the Assembly and, if so, to what extent?
Should the law of Wales be separate from that of England and, if so, what would the effect be particularly on the legal professions?
Should Wales have its own system of courts and, if so, to what levels?
Or should the joint system provide for greater autonomy and control in relation to Wales?
How should the machinery relating to justice be dealt with in Wales, such as the court service?

We thank all the individuals and organisations that, like CILEx, have submitted evidence to the Commission and we welcome submissions on the issues we are now turning to consider. Your views will help shape our recommendations, to be delivered in 2019, for a new and more accessible justice and legal system in Wales. You can submit your own evidence by going to the Commission’s website at: bit.ly/2AdA916.

Terms of reference for the Commission on Justice in Wales

To review the operation of the justice system in Wales and set a long term vision for its future, with a view to:

promoting better outcomes in terms of access to justice, reducing crime and promoting rehabilitation;
ensuring that the jurisdictional arrangements and legal education address and reflect the role of justice in the governance and prosperity of Wales as well as distinct issues that arise in Wales
promoting the strength and sustainability of the Welsh legal services sector and maximising its contribution to the prosperity of Wales.

It is expected the Commission will publish a report of its ÿndings and recommendations during the course of 2019.

1 Visit: https://beta.gov.wales/commission-justice-wales

2 ‘Law Council of Wales/Cyngor Cyfraith Cymru: Discussion and consultation paper’, available at: https://beta.gov.wales/law-council-wales-discussion-paper