Martin Partington: Spotlight on the Justice System

I have just published a short blog on the constitutional changes being made in Wales. As part of that, I mentioned the publication of the Commission on Justice in Wales, whose report was published in October 2019. I think it is an extremely interesting document, for two main reasons.

1. There are a number of specific ideas in this report which should be considered more actively for implementation in England as well.
2. It offers a holistic set of proposals for a distinct Justice system for Wales. I have long thought that justice policy in England was made in a piecemeal way. This report provides a model of what a comprehensive Justice Policy in England might look like.

Of course, it is easier for a new government to engage in forward planning at a time when its responsibilities are limited. But the ways in which different parts of the English legal system have been dealing with Covid 19 have often been innovative and imaginative. I would argue that this provides an opportunity, for those willing to seize it, for thinking about what a coherent modern justice policy for England might look like.

Anyway, I offer this summary, adapted from the Commission’s report as something that those interested in Justice policy in England might also like to consider.

Source: Commission on Justice in Wales at https://gov.wales/commission-justice-wales

Commission on Justice in Wales: Summary of recommendations

1. Information, advice and assistance

• The funding for legal aid and for the third sector providing advice and assistance should be brought together in Wales to form a single fund.
• Criminal legal aid policy and delivery should be based on the approaches to public defender schemes adopted by the Nordic nations.

2. Criminal justice: reducing crime and promoting rehabilitation

• A new Wales Criminal Justice Board should be created. It should set an overall strategy for Wales including responsibility for ensuring the rights of victims are respected and there is proper delivery of services to victims.
• The Police, Crown Prosecution Service, the judiciary and HM Prison and Probation Service should each publish a strategy in respect of Black, Asian and Minority Ethnic people in Wales and report annually on the strategy to the Assembly.
• Policing and crime reduction policy, including drug abuse and mental health related issues, should be determined in Wales so that it is aligned and integrated with Welsh health, education and social policy.
• Problem-solving courts should be established in Wales along the Northern Ireland model.
•  Youth justice policy should be determined and delivered in Wales. The age of criminal responsibility should be raised to at least 12 years old.
• A comprehensive network of services and centres as alternatives to custody should be established rapidly. An integrated and whole system approach to offender management should be established with a single rehabilitative strategy in Wales.
• Needs assessments of Welsh offenders should be conducted to identify the range of interventions required in both prisons and the community.

3. Civil justice

• Digital court services and other dispute resolution services that are being developed and introduced must be fully accessible to people throughout Wales.
• Dispute resolution before courts, tribunals, alternative dispute resolution and ombudsmen, as well as dispute resolution in respect of administrative law, should be promoted and coordinated in Wales through a body chaired by a senior judge.
• The feasibility of a low cost and effective resolution method for civil disputest hrough the use of a comprehensive ombudsmen scheme, taking into account the online court, should be examined.

4.  Administrative justice and coroners

• All public bodies, ombudsmen and other tribunals which have been established under Welsh law or by the Welsh Government, which make judicial or quasi-judicial decisions, and are not currently subject to the supervision of the President of Welsh Tribunals, should be brought under the supervision of the President.
• The Administrative Court should have the power to stay court proceedings whilst the Public Services Ombudsman for Wales investigates a complaint. The Ombudsman should have the power to refer a point of law to the Court.
• The Welsh Tribunals Unit should have structural independence and the Welsh tribunals should be used for dispute resolution relating to future Welsh Legislation.

5. Family justice: children

• The law relating to children and family justice in Wales should be brought together in one coherent legal system aligned with functions in relation to health, education and welfare.
• Pending further research and the development of a long-term strategy, an all Wales approach to family justice should be developed and led in Wales through the Family Justice Network for Wales and the Local Family Justice Boards. The approach should be followed by all local authorities for dealing with child protection referrals with the objective of avoiding care proceedings when family support would be more appropriate.
• It should be a matter of routine practice prior to the first hearing in care proceedings to examine the feasibility of problem-solving and the form it might take, with a view to finding what steps short of taking a child into care can be put in place.
• The voice of the child should be heard at every stage of the proceedings.
• Family Drug and Alcohol Courts should be established in Wales
• There should be vigorous support for a programme of research to underpin reform of Welsh family justice and associated preventative services. The overarching aim should be the reduction in the numbers of children taken into care and the provision of far better evidence of the impacts of intervention on family life.
• A carefully thought through long-term policy for reducing the numbers of children taken into care should be developed after the conclusions of the research and then implemented.
• Legal advice should be available to each parent in private family law disputes prior to the commencement of proceedings up to a maximum fixed amount in each case

6. Delivering justice: locality and structure

• A strategy for Wales for provision of proper physical and digital access to justice before the courts, tribunals and other forms of dispute resolution should be drawn up and determined in Wales based on the needs of the people of Wales

7. The legal sector and the economy of Wales

• The Welsh Government should, in close consultation with the legal professions, provide fully-funded legal apprenticeships to enable people to qualify as legal professionals in Wales.
• There should be greater transparency about the level and distribution of expenditure on external legal services by the Welsh Government, each Welsh local authority and all other public bodies in Wales.
• The procurement of barristers’ services should be reformed to help build the capacity of the Bar in Wales.
• The Welsh Government should develop and implement as soon as possible our proposed strategy to reinvigorate the rural and post-industrial legal sector in Wales. It should provide strong support for investment in technology, especially in post-industrial and rural Wales.
• The Welsh Government must provide clear leadership and support for the legal services sector. This should be targeted, user-friendly, flexible and attractive to potential inward investors especially with establishing a technology-based nearshoring centre as an objective.
• The Welsh Government, legal professionals in Wales, the Law Society, the Bar Council, other professional bodies and academia should work in partnership. They should develop and promote the capabilities of the legal sector, promote South Wales as a legal centre and increase the export of legal services.

8. Knowledge, skills and innovation

• Welsh law schools must reassess their undergraduate programmes to take advantage of the scope for comparative studies and transferable qualifications.
• Law tech must be taught to all students and the professions across Wales.
• All university and college education providers in Wales should teach Welsh law as part of the ordinary undergraduate syllabus and work together to produce the necessary material. The place of Welsh law and the distinctiveness of the law in Wales should be properly reflected in professional and continuing legal education and training. Wales specific data should be collected and published on a sufficient scale to enable disaggregation, with a view to proper evidence-based policy development and as a basis for research.
• The Welsh Government should lead the development and implementation of an action plan to promote and support public legal education, particularly for children and young people.

9. The Welsh language

• All justice bodies should be subject to the Welsh Language Measure 2011. The Bar, CILEx and the Law Society should provide courses on using Welsh in the workplace, similar to those used by the Judicial College. Digital services that are being introduced must be accessible, free help must be available and all must be available in Welsh at the same time as the English version.
• Professional legal education for those wishing to practise in Wales must be available in the Welsh language with the phased introduction of the availability of all professional examinations in Welsh.  Welsh law schools must collaborate on Welsh medium legal education, especially as regards the provision of teaching materials. All coroner services should be available in the Welsh language.

10. Recommendations on devolution of justice

• There should be legislative devolution of justice. Restrictions and reservations governing the Assembly’s power to legislate on all forms of justice, including policing and offender management and rehabilitation, should be removed, so that it corresponds more closely with the position of the Northern Ireland Assembly and the Scottish Parliament In tandem with the removal of reservations and restrictions on the Assembly’s powers, responsibility for executive functions in relation to justice in Wales should be transferred to the Welsh Government.
• Devolution of justice must be accompanied by a full transfer of financial resources, including all identifiable administrative and capital resources relating to Wales.

11. Recommendations to be implemented under the current scheme of devolution

• Clear and accountable leadership on justice in the Welsh Government must be established under the current scheme of devolution. The Assembly should take a more proactive role in appropriate scrutiny of the operation of the justice system.
• The Welsh Government should address policy issues relating to justice by using external experts who can report jointly with civil servants to Ministers.
• The Welsh Government and the legal sector should develop a joint leadership programme.
• A Law Council of Wales should be established to promote the interests of legal education and the 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 organisation of the senior judiciary in Wales should be changed to provide the necessary working relationships and leadership within Wales.  Wales should be put in a similar position to Scotland and Northern Ireland in the Supreme Court as regards the appointment of judges to the Supreme Court.

12, Recommendations for implementation with legislative devolution

• With legislative devolution, there must be a new Justice Department in the Welsh Government led by a Cabinet Minister.
• The office of Counsel General should continue as an office that provides independent legal advice to the Welsh Government and heads the Government Legal Service in Wales.
• Legislative devolution will require the establishment of a Justice Committee in the Assembly.
• Where there is overlap between the roles of local, regional and national boards, committees and partnerships, they should be merged.
• With legislative devolution, the governance arrangements for the police should be re-examined.
• The law applicable in Wales should be formally identified as the law of Wales, distinct from the law of England.
• The present system where legal practitioners can practise in England and Wales and the legal professions are jointly regulated should be continued.
• Legislation should provide for a High Court and a Court of Appeal of Wales to be established by the Assembly.
• With legislative devolution, a Welsh Courts and Tribunals Service should be developed from the base of a Welsh Tribunals Unit reformed on the model of the Scottish Courts and Tribunals Service.
•  With legislative devolution, the Welsh Government will need to review, and keep under continuing review, the justice infrastructure for Wales.

13. Action to be taken now by the Welsh Government and the Assembly

• The Welsh Government should begin the process of reform by listing the recommendations it will seek to implement whilst the current scheme of devolution continues. The Assembly should make arrangements to monitor and review the process of reform.