We need another commission like the proverbial hole in the head.
More experts telling us what to do at a time when public enthusiasm for experts is at rock bottom. But listen, this is important. The first commission for 200 years to explore our justice system has just declared that the people of Wales are being let down and that Wales should take back control of justice. Now, that’s a rallying call you might expect from campaigners who have been marching for Welsh independence in Cardiff, Caernarfon and Merthyr. But it might surprise you to know that it’s the main finding of the report published this week by an expert commission of eminent legal brains, led by no less than the man who used to head up the entire England and Wales justice system.
The “Thomas Commission” was set up by our previous First Minister, Carwyn Jones. Amongst its aims was to promote “better outcomes in terms of access to justice, reducing crime and promoting rehabilitation.” This week, Lord Thomas of Cwmgiedd delivered a substantial and weighty report calling for justice to be “determined and delivered in Wales.” Now, I know that the Home Office has a reputation for being notoriously stubborn, but this report might – just might – change the minds of those who, until now, have been ambivalent about establishing a proper devolved system of justice here in Wales.
We can’t afford to regard this matter as one just for academic anoraks. Justice and the law are critical to all of our lives. We’re talking about the system of rules that underpins our daily lives; that protects our rights and secures our obligations; that is supposed to keep us safe on the streets. Justice is a system that some of the leading legal minds in the UK believe is failing to function properly here in Wales. Given that, there needs to be a clear path for changing this.
There are plenty of cynics out there who see post-devolution Wales as a land of endless commissions. And, as a veteran of the now-fabled Richard Commission which reported over 15 years ago, I have a degree of sympathy. There is a tendency for eponymous commissions of the so-called “great and good” (whoever they are?) to produce recommendations often calling for sweeping reform. Some of these reports are then firmly stacked on shelves to gather dust. Or, as the argument goes, why can’t governments “just get on with it”?
But, in the case of the justice system, this kind of expert commission was exactly what was needed. Why? First, because justice affects us all. Second, because, as with any radical legal or political change, the devolution of justice cannot really take place without a convincing explanation and a compelling case for change.
The eminent legal academic and practitioner, Professor Thomas Glyn Watkin, gave a guest lecture to my third year Politics and Law students this week. He explained the historical arguments: basically, Wales couldn’t have its own laws because it’s not a territory with its own judicial system; Wales couldn’t have its own judicial system because it’s not a territory with its own laws. But, as Professor Watkin pointed out, Wales now has a body of law of its own, which only applies in Wales, and which is made by its own legislature.
Politics and Law are fundamentally connected. The soon to become Senedd (as I’ll continue to call it) oversees policies fundamental and critical to our lives – schools, hospitals, roads, jobs, child welfare. Yet, we currently have no joined-up approach to ensure that justice and the law are properly aligned with these interventions. As the Thomas report says, we “do not have the benefit which the people of Scotland, Northern Ireland and England enjoy by justice being an integral part of overall policy making. There is no rational basis for Wales to be treated differently.” Hear, hear.
Until now, the argument for devolution of criminal justice and creation of a Welsh legal jurisdiction has lacked the endorsement of a highly respected judge such as Lord Thomas, whose appointment back in 2017 was a considerable coup for the Welsh Government. That is not to say that support hasn’t been growing amongst legal practitioners in Wales, but it has been a contested question, with some other practitioners opposed. But to have the former Lord Chief Justice of England and Wales making these recommendations is hugely significant.
The Commission examined criminal justice and policing; civil, commercial, family and administrative justice; access to justice; legal education and training; the legal professions and economy; and the legal jurisdiction. The significance of its report lies in its unanimous and wide-ranging conclusions. The former head of the England and Wales jurisdiction and his team say that Wales’s participation in that single jurisdiction is a “fundamental problem”.
That is bound to shift the debate in legal circles and engender a greater sense of trust – amongst MPs in particular, which is important since any change to constitutional arrangements will require agreement at Westminster. I suspect the leadership of Lord Thomas and his commissioners will bring proper credibility to the case for devolving justice.
The second reason that the Thomas Commission is so crucial is that, until this week, the evidence base for devolution of justice has been limited. Yes, the concept had been introduced to the political debate, but was very much at the margins. The early hard running has been done by the likes of Carwyn Jones, Elfyn Llwyd, Fflur Davies and the Silk Commission, but the Commission’s 500-plus page report brings together a wide range of conclusions based on evidence sessions, workshops and getting out there to talk to those working at the coal face with some of our most vulnerable people and communities. Those interviews and inquiries have created a complex and invaluable evidence base and a compelling argument.
That evidence base is stark. Cuts to legal aid have effectively destroyed the principle of fair access to justice and undermined the Rule of Law. “Advice deserts” have emerged, particularly in rural areas and post-industrial valleys and towns, where ordinary people simply cannot get legal advice. Meanwhile, the spend on justice has shifted away from crime prevention and reduction, to prisons and incarceration.
We are indebted to my Wales Governance Centre colleague, Dr. Robert Jones who has helped highlight these issues. Rob has established that Wales has the highest imprisonment rate of any country in Western Europe, that rates of short-term sentencing for women are shockingly high (and all women are imprisoned outside Wales as we have no women’s prison). Also, that imprisonment in Wales is even more racially disproportionate than in England. This is an appalling indictment of the status quo. So, now that the evidence is out there, how do we achieve the much-needed shake-up of the justice system?
An awkward secret of Welsh politics is that commissions often actually work. They can seem tortuous and aloof, but they build the evidence base and the intellectual case for change. Distance helps too; commissions generate space which helps takes the sting out of tough decisions for politicians. In the case of Holtham and Silk, the bulk of the recommendations were eventually implemented, like tax devolution, a fiscal framework, and a reserved powers model. We have seen that UK Governments, mostly Conservative in the time period we are dealing with, used the Holtham Commission’s finding regarding the Barnett formula to introduce an (albeit-limited) needs factor into Wales’s funding.
A thoughtful and ambitious Secretary of State like Stephen Crabb used the Silk Commission as a basis for introducing various Wales bills which changed our constitution – even where he had personally previously opposed a number of its conclusions. And, in many ways, the Richard Commission was ahead of its time with its proposed changes to the the size of the Assembly and its electoral system. It also helped expose the need for changes to the Assembly’s internal architecture and stimulated the 2006 Government of Wales Act.
Neither is it always the case that Westminster completely ignores policy commissions it doesn’t like. Given the right political conditions – and who know what the “right conditions” are at the present time! – a deal over justice could be negotiated with the UK Government. It’s an obvious but critical point that it must also be accompanied by full resources.
There is much in the commission’s report for the current Welsh Government and Senedd to get on with. The Welsh Government needs to start paving the way for the devolution of justice to be implemented, it will need a new department and surely a Cabinet Secretary. Equally, more scrutiny of the existing justice system is required in the Senedd. And the reality is that is unlikely to be done with so few “backbench” AMs. Our 2017 report on enlarging the Assembly to 80-90 members to make it fit for purpose to deliver for the people of Wales is being considered by a new committee on electoral reform. As I said when I gave a briefing to the committee this week, I’ve yet to see a credible, intellectual case for retaining such an under-powered Assembly. Let’s hope our politicians now have the courage to bite the bullet on this.
I’m under no illusions that the Commission on Justice report will feature on most people’s registers. That’s understandable. But we need to speak up about how the justice system, under the UK Government’s stewardship, drastically fails to meet the needs of the people of Wales. If we can put the tools to fix this in the hands of our own democratically elected decision-makers, we can grasp the nettle and take another important step towards establishing a proper, mature Welsh democracy.
This article was originally published by WalesOnline.
Professor Laura McAllister is Professor of Public Policy in the School of Law and Politics and the Wales Governance Centre at Cardiff University.
This post represents the views of the author and neither those of the Politics & Governance blog nor Cardiff University.