Thomas on Wales

With radical recommendations for ‘fair, distinct and devolved’ justice, the Thomas Report should be required reading for anyone interested in Wales and the state of its justice system – writes David Hughes

Devolution, as Ron Davies memorably pointed out, is a process, not an event. Neither is it a journey with a fixed end point, the former Secretary of State for Wales added. But a less than straightforward process it has been. From administrative devolution, without any primary law-making powers, we’ve seen the Assembly gain the power to make primary legislation (expanded in 2011) in specific fields (the ‘conferred powers’ model) and, in the Wales Act 2017, the move to a ‘reserved powers’ model, in which the Assembly can make laws in any field not reserved to Westminster. The list of reservations in the Act – who knew that Hovercraft needed to be reserved to Westminster as vital to the unity of the UK? – is long, complex, and, in my opinion, lacks any identifiable rationale other than to reserve as much power as possible to London. Whatever the final destination of our devolution journey, maybe we haven’t reached it yet.

Justice, and the single jurisdiction of England and Wales, are amongst the powers reserved to Westminster. Despite that, in September 2017, then First Minister Carwyn Jones announced the establishment of a Commission on Justice in Wales, to be chaired by Lord Thomas. The Commission’s terms of reference – and its other members – were published in November 2017. In October 2019, the great and the good of legal Wales – plus a few others, like myself – gathered at the Senedd for publication of the report, entitled Justice in Wales for the People of Wales (read it at: bit.ly/thomascommission).

This is a subject close to my heart. Having started my legal career in Gibraltar, the notion that Wales is too small to have its own jurisdiction has always struck me as ludicrous, and in September 2015 I was one of the signatories – indeed, one of the drafters – of the pamphlet, Justice for Wales (read it at: bit.ly/justiceforwales). In the pamphlet, we called for Wales to have a jurisdiction separate from England.

The Thomas Commission was certainly high-powered. But I was cautious about what it might report. Would some lawyers’ reluctance to do anything for the first time lead to some halfway house recommendations? And even when the report was launched – at the same venue our pamphlet had been published, and with a very similar title (Thomas Commission, you’re welcome ), I was still holding back my hopes. Need I have worried?

The state of justice in Wales

Thomas on Wales sounds like a good title for the Common Law Library series. And at 511 pages (plus appendices), it would fit in well alongside the likes of Gatley. But it’s not an example of ‘never mind the quality, feel the width’. The report is well laid out, thoughtful, readable, and should be required reading of anyone interested in justice in Wales. Or, indeed, simply interested in Wales. It sets out impressively the state of justice in Wales, and explains how we have got where we are.

The Ministry of Justice’s response – ‘It is our belief that a single jurisdiction is the most effective way to deliver justice across England and Wales’ – was, sadly, predictable, and appears to have been offered before the report was read (see BBC news: bbc.in/2M0QCef). I doubt that anyone reading the report would share it, or conclude that the current justice arrangements are satisfactory.

The overall picture is one of an ill-thought-through justice system that is, too often, inaccessible to those who need it, designed (to the extent that it is designed at all) without regard to whether it meets Wales’ needs. To take just one example, eligibility for legal aid in our jurisdiction is far lower than in Scotland (para 3.1 – figures are for England and Wales jointly), which impacts particularly on Wales as income poverty here is higher than in England (para 3.24). The report helpfully identifies the misleading practice of the Legal Aid Agency including in expenditure sums paid by parties against whom costs orders are made in favour of assisted parties (para 3.18).

The funding of access to justice is an issue across our joint jurisdiction, of course. But the report identifies problems that, if not unique to Wales, are certainly unlikely to figure highly on the radar of policy makers in London. Although a small country, communications in Wales – particularly, but not only North-South – are often poor (para 8.25). Yet court closures have left vast areas of our country without a nearby court. The report cites the Yes Minister-esque case of Abergavenny Magistrates’ Court – included in a 2010 consultation list for closure, despite having been refurbished and reopened that same year (para 8.26: it has since closed). The very real transport difficulties in getting to courts are identified – many locations being more than 30 miles from the nearest magistrates’ court, and the journey from Cardigan to Aberyswyth Justice Centre taking more than two hours using public transport. Although the report concluded that it would probably be disproportionate and unrealistic to go back to having dedicated court buildings in many areas – despite the willingness in Scotland and Northern Ireland to keep open courts not used daily (Para 8.28) – it does advocate the use of pop-up courts that use other buildings (Para 8.31). On this, Sir Malcolm Pill’s question (quoted in the report) – ‘If a Welsh public body decides where hospitals are built in Wales, should not a Welsh public body decide where courts are built?’ – deserves a serious answer.

These are not the only issues. Facilities for prisoners – there is not a single women’s prison in Wales, for example – and family justice all feature. It is impossible to summarise everything dealt with in the report, even in a relatively long article for Counsel.

A fair shot for Welsh lawyers

Chapter 9, ‘The legal sector and the economy of Wales’, gives a somewhat bleak picture of the legal professions here. Statistics in the report show there to be fewer firms of solicitors per capita in Wales than in England, those firms tending to be smaller, in numbers of staff and turnover, very thin on the ground in some areas and facing significant succession issues (again in some areas). I have to say that my own experience – and perhaps I am fortunate in the source of my instructions – is more encouraging: Wales has some ambitious, entrepreneurial and very able solicitors, as good or better than their competitors across the border.

The Welsh-based Bar has grown in numbers more than in the jurisdiction as a whole over the last nine years. In terms of gender-balance, the Welsh Bar does slightly better than the Bar as a whole, a slightly higher percentage of Welsh barristers (barristers whose chambers (or main chambers) are in Wales) declare a disability, and the percentage of Black, Asian and Minority Ethnic people at the Bar is slightly higher than the percentage of the Welsh population. This chimes with my experience of the Welsh Bar as an unstuffy place. It will, however, be no surprise that the Welsh Bar has a lower proportion of silk than the Bar as a whole – QC Appointments doesn’t even bother to hold interviews in this country. The Welsh Bar, in our submissions to the Commission, drew attention to the fact that there are only two Welsh-based silks with civil practices (read the Wales and Chester Circuit’s submission at: bit.ly/2POCSV3). The position in Northern Ireland appears to be much healthier, with silk a realistic ambition for civil practitioners.

The report laments the failure to build a legal services brand in Wales, giving Leeds and Belfast as examples of how this has been done. It refers to the tendency of solicitors and public bodies to instruct English-based counsel, something noted in the Welsh Bar’s submissions. My own suspicion is that supposed ‘specialism’ may play less of a role in this phenomenon than a belief that ‘London knows best’, and a confidence that higher fees paid to English-based counsel will be recoverable (despite equally good local people being available). Whilst many Welsh barristers – myself included – enjoy cross-border practices, there are those who have concluded that it is simply not worth the bother of trying to attract certain potential clients – in the public and private sector – who simply refuse to give the Welsh Bar a fair shot.

How will devolution impact the Bar?

Sir Malcolm’s question takes us to the devolution of justice, and the separation of the joint jurisdiction. The report comes down in favour of creating – re-establishing would be a better term – a separate Welsh jurisdiction, with our own courts up to Court of Appeal level (it doesn’t mention reviving the historic ‘Court of Great Sessions’ for such bodies). It proposes legislative and executive devolution of justice, akin to that enjoyed by Scotland and Northern Ireland. Wisely, it cautions against trying to replicate the Whitehall structure of a justice department, advocating instead a small department working closely with academics and practitioners in policy development.

At the risk of emulating recent political promises, I can assure English-based barristers that no-one is threatening their ability to work in Wales. Their ability to do so would be helped by the Commission’s proposal that Welsh Law should be distinct from English Law (even if its substance was, in many areas, a mirror-image). It pointed out the arrogant practice of Parliament making law that is relevant only to England, without including ‘England’ in the title. In Parliament’s defence, even Supreme Court Justices have been known to refer to Anglo-Welsh law as ‘English’. English-based practitioners would, one hopes, be less likely to turn up to a Welsh court citing the wrong law, if it was clear to all concerned that the law in each country was a separate thing.

Where the Commission misses a trick, I fear, is in its recommendation that the legal professions in England and Wales continue to be joint professions. No-one in Wales is arguing against competition, but this recommendation would deny Welsh lawyers the chance to regulate ourselves in a more cost-effective way. Although the Commission reports that they ‘… see no benefit in creating two systems of regulation and profession qualifications and then re-erecting a market through legislation… similar to the Australian system’, this conclusion conflates training (there is no reason why that should differ, and every reason why it should continue to be joint) with regulation. It is not preceded by any evident assessment of whether Wales might benefit from more efficient and less costly regulation of lawyers. It is, for me, the weak point of the report.

Linguistic politics and other controversies

It would be wrong for me to end without mentioning the Welsh language. There are those who feel that London considers the language to be the beginning and end of Wales’ distinctiveness. As most of us don’t speak it, that would be wrong, but the report helpfully points out some shameful shortcomings in the provision of justice in Welsh – from the plight of Welsh speaking prisoners in English gaols, to the inability of coroners to send forms in Welsh (due to the software they use). Welsh speakers are entitled to justice in their own language, just as English speakers are. How that is achieved without alienating English speakers – and one regularly hears expressed the fear that, as Wales gains more power, progress here will be limited to Welsh speakers (a fear that may not have been expressed to the Commission in formal evidence, as those who hold this fear are often reluctant to air it publicly) – is something best left to us in Wales.

So far, we’ve managed to handle our linguistic politics without generating resentment amongst the English-speaking majority (of which I am part). And bilingual legislation has meant legislation that is more clearly drafted than a lot that Westminster produced, which even the most determined English monoglot should welcome. Indeed, the latest linguistic controversy involves the unnecessary use of an English term – our legislature’s new name is to be ‘Welsh Parliament’ as well as ‘Senedd Cymru’, despite English speakers here knowing exactly what the latter is. A message to Westminster: leave the language to us. We’re more likely to get it right that you are.

Reading the whole report, one is tempted to say that the same advice would go for justice in general.

The Commission, led by Lord Thomas of Cwmgiedd (pictured above), said: ‘We have unanimously concluded that the people of Wales are being let down by the system in its current state. Major reform is needed to the justice system and to the current scheme of devolution. We have reached a unanimous set of conclusions and recommendations which when implemented would deliver justice in Wales for the people of Wales.’
Designed by Richard Rogers, the striking Senedd (pictured above) in Cardiff Bay, home of the National Assembly for Wales, opened in 2006. The building was sculpted out of the bay and designed to symbolise an open democracy. Sustainably built, it also has an exemplary environmental footprint.
The author has given evidence to the Welsh Assembly into the establishment of a separate Welsh jurisdiction and was one of the authors of the pamphlet, ‘Justice for Wales’.
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David Hughes

David Hughes is a barrister at 30 Park Place Chambers in Cardiff. He has a broad common law, commercial and public law practice.