1 JUSTICE IN WALES FOR THE PEOPLE OF WALES October 2019 2 The Commission on Justice in Wales Cathays Park Cardiff CF10 3NQ © Crown copyright 2019 Published October 2019 ISBN: 978-1-83876-822-5 You may re-use this information (not including logos and some images) free of charge in any format or medium, under the terms of the Open Government Licence (OGL). To view this licence, visit www.nationalarchives.gov.uk/doc/open-government-licence/ or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: [email protected]. Any enquiries regarding this publication should be sent to [email protected] Report design and typesetting by: www.waters-creative.co.uk Welsh translation by: www.prysg.cymru CONTENTS 3 Contents Foreword 6 Executive Summary 8 List of recommendations 18 Chapter 1: Our approach: a just, fair and prosperous Wales 29 Chapter 2: Past and present 43 • Part 1: The historic legal identity of Wales 44 • Part 2: The complexity of the current scheme of devolution 54 • Part 3: Court and tribunal system in Wales 62 • Part 4: Finance and resources for the justice system in Wales 75 Chapter 3: Information, advice and assistance 89 • Part 1: The present system 90 • Part 2: Legal aid and advice for civil, family and other problems 96 • Part 3: Criminal legal aid 124 Chapter 4: Criminal justice: reducing crime and promoting rehabilitation 133 • Part 1: The complex division of government responsibility and funding 137 • Part 2: Victims of crime 148 • Part 3: Black, Asian and Minority Ethnic people 156 • Part 4: The role of the police 161 • Part 5: The Crown Prosecution Service and the courts 188 • Part 6: Youth justice, probation and imprisonment: the need for a whole 197 system approach to offender management and rehabilitation 4 CONTENTS Chapter 5: Civil justice 243 • Part 1: Substantive civil law 244 • Part 2: Dispute resolution 247 • Part 3: Coordination and rationalisation 259 Chapter 6: Administrative justice and coroners 263 • Part 1: Substantive administrative law 265 • Part 2: Dispute resolution 270 • Part 3: Coroners 286 Chapter 7: Family justice: children 291 • Part 1: The complexity of the current devolution scheme, 293 particularly in respect of children • Part 2: Taking children into care 300 • Part 3: Disputes between parents over children 341 Chapter 8: Delivering justice: locality and structure 347 • Part 1: Current position 348 • Part 2: Future provision that Wales needs 360 Chapter 9: The legal sector and the economy of Wales 369 • Part 1: The make-up of the legal sector 371 • Part 2: The relationship to the economy 381 • Part 3: Qualification as a lawyer 384 • Part 4: Legal work performed in Wales 391 • Part 5: Rural and post-industrial Wales 397 • Part 6: Technology and a legal services brand in Wales 402 Chapter 10: Knowledge, skills and innovation 409 • Part 1: Higher and professional education 411 • Part 2: Reform: innovation and collaboration 418 • Part 3: Public legal education 428 CONTENTS 5 Chapter 11: The Welsh language 431 • Part 1: Bilingualism in the justice system 433 • Part 2: The current position and recommendations for change 437 Chapter 12: Governance, the law of Wales and the judiciary 449 • Part 1: Our objectives and our approach 450 • Part 2: Executive and legislative powers 459 • Part 3: Changes needed in the governance institutions 472 • Part 4: Clarity on the law of Wales and the professions 486 • Part 5: The judiciary and the infrastructure that supports the justice system 493 • Part 6: Independence of the justice system. Wales as a just, equal and 507 diverse nation • Part 7: The implementation and monitoring of our recommendations 511 Appendix A 513 • List of figures 514 Appendix B 519 • Expert contributors 520 • Commissioners’ biographies 521 • Members of the Secretariat 523 Appendix C 525 • Principles for recommendations as set out in our call for evidence 526 • Written evidence 527 • Oral evidence 538 • External engagement with the public, professions, 547 Whitehall departments and politicians Appendix D 553 • Justice infrastructure 554 6 FOREWORD FOREWORD Our task was to review the operation of the justice system in Wales and to make recommendations for its long-term future. This required us to examine a range of issues given that the provision of justice by the state is one of its basic duties. Wales has a long and distinctive history of placing justice at the centre of its culture and society. Our enquiry therefore centred on whether it met the needs of the people of Wales, particularly those disadvantaged for reasons such as severe economic deprivation or being the victim of crime. Our aim was to assess whether the justice system as it currently operates in Wales is fair and just and makes a contribution to economic prosperity. With this in mind our report sets out what we found and makes recommendations focused on this objective. We have worked as a team, both as Commissioners and with our Secretariat. As Commissioners we all have different experiences of the justice system. Those differences enabled each of us to examine the whole system in depth and question each others’ views on every aspect of it. Working with the Secretariat, we subjected the evidence to careful analysis. We reached unanimous conclusions on our findings and recommendations following thorough discussion and debate. I would like to express my gratitude to each FOREWORD 7 of the Commissioners for the dedication and time they have given, and to each of the members of the Secretariat for the way in which they have worked so hard and closely with us during the period of our enquiry. We owe an immense debt of gratitude to the many people who provided detailed and penetrating submissions, to those who gave oral evidence and answered our detailed questions, and to a small number of individuals who provided us with expert help during the final stages of our work. This has enabled us to write an evidence-based report informed solely by what we found and by what we consider is in the overwhelming interests of the people of Wales. We address our report to the Welsh Government. It has been our privilege to be given the opportunity by the Welsh Government to undertake this task. We hope that we have discharged the heavy responsibility placed on us. The evidence we obtained about the current justice system in Wales is presented in an unvarnished manner. Our recommendations, radical though some need to be, will give the people of Wales a better means of achieving a system which provides access to justice, can be trusted to deliver justice and puts justice again at the heart of their nation and its prosperity. 8 EXECUTIVE SUMMARY EXECUTIVE SUMMARY Our overall conclusions 1. The Commission’s task has been to review for the first time in over 200 years the operation of the justice system in Wales and set a long-term vision for its future. 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. 2. Justice should be at the heart of government. Policy and spending on justice should be aligned with other policies, particularly those which are devolved to Wales, such as health, education and social welfare. Under the current scheme of devolution there is no properly joined up or integrated approach, as justice remains controlled by the Westminster Government. Consequently, the people of Wales 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, particularly as Wales has its own long legal tradition. 3. The reductions in the justice budget made by the Westminster Government since 2010 have been amongst the most severe of all departmental budget cuts. The impact on Wales has been significant as the interests of Wales have not been at the forefront of the Westminster Government’s policy decisions. The Welsh Government has used its own money, in addition to permitting rises in council tax, to try and mitigate the damaging effects of these policies. The result is that almost 40% of the total funding is actually contributed in Wales. This is above other tax revenue that is raised from Wales and then allocated by the Westminster Government to Wales. This position is unsustainable when the Welsh Government has so little say in justice policy and overall spending. EXECUTIVE SUMMARY 9 4. Justice should be determined and delivered in Wales so that it aligns with its distinct and developing social, health and education policy and services and the growing body of Welsh law. Policy would be developed and funding allocated to meet the needs of and provide greater benefit for the people of Wales. 5. Our conclusions were reached after consideration of over 200 written submissions from individuals, institutions and organisations; oral evidence from 150 witnesses from across the whole spectrum of the justice system – from those representing victims of crime to those making laws; previous justice reports specific to Wales and reports on the justice system in England and Wales as a whole; and further research commissioned to coincide with our work. The experiences of members of the public from a diverse range of backgrounds in over 80 meetings and events reinforced these conclusions. 6. To set our review in context, we looked beyond Wales, visiting Scotland, Northern Ireland and major English cities.