Mick Antoniw, Counsel General and Minister for the Constitution welcomed delegates at the Legal Wales Conference 2021 this morning, live-streamed to a virtual audience from the Law Library at Cardiff Crown Court.
Last week, the Counsel General recently outlined the Welsh government’s manifesto and ‘Programme for Government’ commitment to pursue the case for the devolution of justice and policing to Wales.
He also announced the intended launch of the Law Council of Wales, with a formal inaugural meeting of the proposed Executive Committee initial meeting planned for November 2021.
His speech at the Legal Wales Conference can be found below. A full recording of the plenary sessions will be uploaded to Legal News Wales in due course. (To sign up to our notifications, click here.)
Let me start by thanking the Legal Wales Foundation for giving me the opportunity to address you all today as Counsel General for Wales and indeed for organising this conference.
The Legal Wales conference is an important institution that has come to be a landmark in the Welsh legal calendar. Every year, Huw and Keith and others give freely of their time to bring us together and to organise programmes that are informative, topical, and helpful both to practitioners and others of us who have our different reasons for caring deeply about the growth, the development and identity of the Welsh legal community.
This year’s programme is no exception. I particularly welcome the Lord Chief Justice’s presence here once again.
Today I want to talk about ‘power’.
Power is probably not the first word that springs to mind when you contemplate the state of our justice system and the legal professions. We talk a lot about fairness, equality before the law, and access to justice – all concepts I will undoubtedly also discuss today. But power – who exercises it and how, where it derives from – is profoundly important in all our lives. I hope today I can explain why it is something we should all be concerned about right now, and why it is becoming such an important issue in Wales.
First, though – what is power?
I believe it is customary at events like these to start by quoting an august legal or constitutional scholar. And so I shall. My quote is from series 2 of Game of Thrones. It comes from Varys, who, as I’m sure you all know, is a eunuch who has risen from obscurity to sit on the King’s Small Council, alongside a motley collection of royal relatives, corrupt elder statesmen and ruthlessly ambitious shadowy figures. I will draw no comparisons with any other governing bodies.
Varys sets one of the other characters a riddle. A king, a priest and a rich man sit in a room with a common mercenary. Each man bids the mercenary to kill the other two. Who lives? Who dies? Where does power reside?
The answer, we are told, is that ‘power is a trick. It resides where people believe it resides’. I do not agree with Varys that it is a trick, but the rest of that quote merits some further thought.
You see, the Welsh Government believes that power resides with the people of Wales.
Power, or sovereignty as I will now refer to it, has its origins in the strength of force. It lay with whoever was most able to exert that force or build alliances to achieve it by force.
It is no mistake, that the Royal Mace, both in Westminster and the Mace in the Senedd, both symbols of sovereign power have their origins as battlefield weapons. Of course we have moved on since those days as civilisation and governance has developed and constitutional power transferred in practice to the citizens through the ballot box.
When we had one elected government in Westminster and one legislature, we could say without contradiction that sovereignty lay with Parliament in Westminster.
But we now have four parliaments in the United Kingdom, four legislatures, elected and with their own popular mandates. In Wales we have our own Parliament, our own laws and our own electoral mandate.
If we truly believe that sovereignty lies with the people, then sovereignty is now shared between the four Parliaments in Scotland, Wales, Northern Ireland and Westminster.
Consequently, it is no longer tenable to claim that all authority derives from the Westminster Parliament, or the Crown, or any other London-based institution dating back centuries.
Deep down, the UK Government too knows that authority in Wales derives from the support of the Welsh people. It conceded that principle when it, rightly, allowed the people of Scotland to determine whether or not to continue to participate in the UK. Should they wish and choose to exercise that right, it could not now be denied to the people of Wales. In other words, however Wales came to be in a United Kingdom, it is now voluntarily in partnership with the other three nations, demonstrated by the consistent significant majority of the Welsh public who vote for unionist parties in elections to the Senedd.
But what matters is not institutions. What matters is individuals, and whether people are – and feel – empowered in their own lives.
In a democracy, while power ultimately derives from the populace, it is applied through the making and enforcement of laws. As a citizen, what matters most is that I have a voice in determining the laws that I live by, and that I can have confidence those laws will be applied fairly.
Unfortunately, Wales and the wider UK are falling short in both those respects in important ways.
I am delighted to be not just Counsel General but also Minister for the Constitution. And the reason I am delighted is that it is my job to try and put right both of those deficits – which are the two things I want to talk about for the remainder of my time today.
First, I will discuss how we make laws, and then – particularly important for today’s audience – how we ensure laws are enforced fairly.
So, first, how can we give the people of Wales more of a say on the things that matter to them? And why would that be a good thing?
The trouble with the constitution
Let me share with you another quote:
“I believe it is good for a country and its people to have its fate in its own hands and for their own decisions to matter. When I look round Europe, by and large it’s the smaller countries, who … seem to have higher quality decision making –they can’t afford not to. Being responsible for your own policies produces better outcomes.”
That quote is from Lord Frost, a minister in Boris Johnson’s Cabinet. He also said that it had the ‘obvious’ advantage ‘that it is much easier to get people involved in taking decisions’.
Of course, he was talking about Brexit. Within the European Union, Conservative governments were also tireless champions of the principle of subsidiarity – namely, that decisions should be taken as close as possible to the people affected by them. If Brussels continued to hoard powers, successive UK Ministers would tell the Commission and the other member states, the growing democratic deficit would leave the people of Britain feeling disenfranchised, and ultimately they would no longer wish to be members.
It is striking how the same politicians cannot see the parallels.
Just as the language of ‘Take Back Control’ resonated with people who felt disempowered by decisions being taken in Brussels, so there are clearly many people in Wales – and doubtless other parts of the UK – who feel equally disempowered when decisions affecting their lives are made in London, with seemingly little regard for what it means for Wales.
It is now the Welsh Government which champions the principle of subsidiarity. See, for example, our publication ‘Reforming our Union: Shared Governance in the UK’, first published in 2019 and refined this year, which set out a vision for a radically reformed, federal UK.
It is a vision for a UK that might do a better job than current arrangements in retaining support for the principle of the Union. That vision is of a UK rooted in the consent of all its people.
It is also that vision, and the pressing need to establish a version of the UK’s governing arrangements which can make people in Wales feel like they are part of the decisions affecting them, which has driven us to establish a Constitutional Commission. That Commission may sound dry, but the First Minister and I want it to lead a national conversation, one that engages more than the usual suspects, and asks ordinary people, how can Wales be run in your interests?
No doubt there are many lessons to be learned from the experience of the coronavirus pandemic. But one thing that has struck me is the extent to which it has become a commonplace assumption that decisions affecting the Welsh people will be taken by Welsh ministers based on Welsh interests. That is clearly what people now expect.
Having managed something as all-important as protecting public health in a pandemic, it is profoundly disempowering to suggest Wales cannot be trusted with allocating its own regional development funds.
But as Lord Frost recognised, vesting powers at the right level is not just about involving the right people in decision making for its own sake – it also leads to better laws. I believe we could make more effective law and govern better if we had a coherent set of responsibilities.
Let me use the example of youth justice.
In Wales, most of the services that work with children are devolved – such as education, childcare and social services. We have a distinct legal and operating environment from England – whether that is through incorporating the United Nations Convention on the Rights of the Child and passing the Wellbeing of Future Generations Act, or taking a “child first” and trauma informed approach to children from troubled families. In Wales we recognise the large proportion of challenges faced in adulthood which arise from adverse childhood experiences such as parental drug and alcohol abuse.
However, when it comes to criminality by children, the law is set in Westminster. What is more, it is not compatible with the approach taken in Wales. The most obvious symbol of that is that the age of criminal responsibility is just ten years old. That is not consistent with the UN Convention, and it is not compatible with a child-first approach. Whatever action a child of ten or eleven takes, and I know we will all be able to think of some dreadful things done by children, they are still a child, and as a society we do not give up on them.
We have managed the youth justice system well in Wales despite the flaws in the law, through the strength of our relationships. For example, we have worked in partnership with the Youth Justice Board in ensuring that the use of criminal proceedings for children is very much the last resort, and the number of children in custody has reduced dramatically over the last decade. Only in passing will I note that this has been achieved partly through expenditure of Welsh Government funds and yet the savings have passed to the Ministry of Justice and are not necessarily reinvested in Wales.
We also, for the most part, work effectively with Her Majesty’s Prison and Probation Service in providing secure accommodation for those children who do get convicted and receive a custodial sentence. But again, this is reliant on relationships, and a system based on relationships is fragile compared to one where everybody is working to the same ends.
Ultimately, we cannot escape the fact that the people who are responsible for providing secure accommodation for young offenders are not accountable to the Senedd and are not an integral part of a host of devolved public services which directly impact on the success or otherwise of the youth justice system and of the young people who enter and come out of that system.
All that is just one example. Transferring responsibility for youth justice to Wales would have clear benefits, but on its own it will not achieve the goal of aligning laws and operations across Wales in line with the priorities of the Welsh people.
Commission on Justice in Wales
I have got this far through my speech without mentioning the Commission on Justice in Wales, chaired by Lord Thomas of Cwmgiedd. In previous years this conference has of course heard a great deal about that landmark exercise, to which so many of you gave so generously of your time and expertise. You will not need reminding that this was the largest ever examination of the justice system in Wales, and that it concluded clearly and unanimously that the people of Wales were being let down by their justice system, as well as how to put that right.
The Thomas report was clear that the route to securing Wales the justice system it deserves was through bringing responsibility for the justice system to Wales in its entirety. We agree with that.
It is consistent with the logic of subsidiarity – if the justice system can be run from Wales, it should be run from Wales. It gives the people of Wales the maximum stake in their own future, and it allows the maximum alignment of public policy in Wales with the wishes of its people.
The single biggest problem with Wales’s justice system is the number of people going to prison, and the length of time they are spending there. The amount the UK Government spends on prisons is obscene, especially when contrasted with a decade of cuts to legal aid and of budgets for courts, prosecutors, probation services and many other elements of the justice system. If we had the power to set criminal justice policy and sentencing, we could reduce the prison population and invest the savings in alternatives to custody, or in the things that stop people offending in the first place.
Programme for Government
So, as our Programme for Government makes clear, we are pursuing the case for devolution of justice in its entirety. That of course reflects our manifesto commitment, and with the Plaid Cymru manifesto also committing to pursuing the devolution of justice, it is a position that was endorsed by the majority of Welsh voters and is supported by a majority of their elected representatives.
In that context, it was hugely disappointing that the last Lord Chancellor’s position was to reject out of hand the central recommendation of the Thomas Commission – something we have made very clear to the new Lord Chancellor as we did to his predecessor. Later today, when you hear from Lord Wolfson, he will no doubt cite individual recommendations that the Ministry of Justice has accepted, and that is no bad thing, but I respectfully suggest you ask yourselves whether anything you hear has the potential to provide the scale of change our justice system needs. You may also want to ask yourselves how it can be right that the people of Wales vote for the power to run their own justice system, and a government in London can simply reject it out of hand.
However, while the position taken by Mr Buckland was disappointing, it was not surprising. So rather than simply accept there will be no progress until there is a change of government or a Damascene conversion, we did indicate to him that we were willing to discuss incremental devolution of justice functions as an alternative approach that allows at least some of the benefits to be realised.
Youth justice, which I talked about earlier, is one example of something that could be devolved independently of other elements of the justice system. Indeed, the devolution of youth justice was recommended by the UK Government’s own Silk Commission all the way back in 2014. There are other examples. We can but see.
For me, the crux of the problem is that the debate around the devolution of justice has become victim to a political debate about which parliament owns the justice system, where does the power over the justice system lie, which Parliament, when the real question is, where you have a devolved parliament, with all key justice related and impacting public services devolved, where is justice best administered and delivered?
If we change the question, the trick of where power lies (or rather where it should lie) suddenly becomes obvious.
The failure to devolve justice is a political trick that has little to do with the best administration of the justice system and the well being of young people and Welsh citizens.
The trouble with the current justice system
So far today I have talked about who has the power to make laws and to input into that process. But the other side of the coin is having confidence that laws will be applied and enforced fairly. That is another necessary precursor to any of us feeling empowered in our society. For the remainder of my talk, I want to talk about what is stopping people from feeling confident in the fair enforcement of the law.
Unfortunately, there is a lot.
If we want all of our citizens to have confidence that the law will be enforced fairly, we need institutions that better reflect the diversity of the society they serve.
We also need to ensure it is crystal clear that nobody is above the law. That is a cardinal principle of the rule of law. And that is why it is so dangerous for governments to talk about over-mighty judges and judicial overreach, and tamper with the principles of judicial review.
Let me be clear – as one of the bodies within the UK whose actions are frequently subject to judicial review, the Welsh Government sees no need for reforms to reduce its availability. Indeed, we see the scrutiny of our actions by the courts as an important safeguard for citizens and as a helpful guarantor of good decision making. The rule of law is a fundamental protection for the empowerment of citizens and a safeguard for the preservation of democracy and civil rights.
We said as much to the UK Government, and to its independent review of administrative law, which of course agreed that there was no case for significant reform.
So it was both strange and worrying to see the Lord Chancellor responding to that review by publishing a set of proposals explicitly rejected by that independent review. And while it is welcome that those proposals have now once again been largely discarded, it is still worrying that the UK Government continues to promise to legislate to exclude certain government decisions from review by the courts.
Where there is one rule for government and one rule for everyone else, that erodes public faith in the law and the importance of the rule of law.
But most corrosive of public confidence is a failure to properly fund the justice system – as has been the case in the UK for many, many years now.
Police and prosecutors must be funded, so that crime does not go unpunished.
Alternatives to prison must be funded, so that people do not go there unnecessarily, which apart from anything else increases the long term cost to the taxpayer when opportunities are missed to treat underlying conditions such as addictions.
Courts must be funded, so that there are sufficient facilities to eliminate backlogs, to safely accommodate everyone who participates in proceedings and to reduce the need for lengthy journeys on congested roads.
Alas, I could go on listing underfunded areas of the justice system. But in present company the most important area to discuss is regrettably still legal aid.
My view is simple. Publicly funded legal support at times of need is as crucial as publicly funded healthcare. If you have heard me speak down the years you will likely have heard me quote Viscount Simon when the Attlee government established legal aid.
We established legal aid because:
“whatever the difficulties may be in the way of poverty, no citizen should fail to get the legal aid or advice which is so necessary to establish his or her full rights … this is an essential reform in a true democracy”.
The reference to advice in that quote is a particularly important one, because of course one of the major casualties in the decade of cuts we have faced is the availability of advice through the legal aid system. And of what use are legal rights if you do not know you have them, or do not know how to exercise them? How many just proceedings in the civil courts and tribunals have not been brought, because people who have been wronged simply don’t know where to start?
In Wales and in the rest of the UK we are heading towards an increasingly two tier justice system. One where those with the necessary resources have access to the justice system and those without, usually the poorest and most vulnerable in our society, do not and are effectively excluded from it, often just becoming, disempowered, angry and frustrated victims of the justice system and whatever it delivers to them.
The Welsh Government is not funded to step in and fill these gaps in legal aid provision, although, as acknowledged in the Thomas report, we have attempted to at least meet some of the most desperate areas of need. Through the Single Advice Fund, we are funding a number of advice consortia across Wales who embraced our ambition for providers to develop collaborative service delivery models, which reach people most in need of advice, helping them to resolve multiple, and often entrenched social welfare problems, and offering representation before Courts and Tribunals.
We also do the best we can within our powers to ensure that individuals without access to legal representation nonetheless can avail themselves of their rights. But on its own it is not enough and is no substitute for a properly funded legal aid system.
In Wales each of the devolved tribunals takes great care in its procedures to be simple and accessible for those without professional support.
I am delighted that you will hear later today from the Law Commission about the work they have been doing to bolster the independence and effectiveness of our devolved tribunals, and we certainly intend to take the blueprint the Commission gives us and translate it into a reformed and improved Welsh tribunal service.
And I cannot let the opportunity pass to once again draw attention to the work we are doing to ensure the law itself is accessible, clear and certain.
The accessibility of Welsh law
I was very proud to lay the first programme to improve the accessibility of Welsh law before the Senedd last month. It marks the next step in a journey which began for us about ten years ago. It has included the Law Commission’s important contribution in their Form and Accessibility of the Law Applicable in Wales report of 2016 and the enactment of the Legislation (Wales) Act 2019.
Our programme for the next five years commits the Government to bringing forward consolidation Bills and taking a number of other steps to make the law more easily available and understandable.
Our consolidation of planning law will provide a comprehensive statement on the use of land, aided by the Law Commission’s proposals to simplify and modernise the law in this area.
Consolidation of several different existing Acts into one well-drafted and bilingual Act will be one of our most effective tools to improve the accessibility of Welsh law. I have previously announced that we will be consolidating the law on the historic environment, and I am pleased to be able to tell you that I will be introducing this Bill in the summer. It will replace existing law that is decades old and that has been amended repeatedly and differently in relation to England, Scotland and Wales.
The programme identifies further areas of the law where we will be assessing the value and potential for consolidation, with a view to bringing forward another two Bills before the end of this Senedd term. Alongside the Bills, we’re also taking forward a number of projects to expand the commentary and explanation of the law, improve the way we prepare bilingual legislation and develop the functionality on legislation.gov.uk to present Welsh law in its up to date form.
But for all that I am proud of our work to make the law and the justice system as accessible as possible for those without recourse to professional support, it remains the case that the bedrock of justice is a strong legal profession.
If we want all our citizens to feel empowered, they need access to legal advice and representation whenever they need it. And because law is necessarily complex at times, reflecting the complex world we live in, there is no substitute for legal professional training and expertise.
So the cuts to legal aid spending over the years have not just limited the number of people who have been able to obtain legal support they need in the immediate term – they have threatened the very viability of legal practices, which are in turn essential to the health of our communities. Many of today’s audience will of course know this all too well. Indeed there are people who might be here today but who have been unable to forge a career in the law, simply because practices cannot afford to take on new staff and provide their professional training.
We need to break this cycle – where there are people who need legal support, and people who want to provide legal support for a living, but not enough public money in the system to allow the supply to meet the demand.
So I welcome the review of criminal legal aid being led by Sir Christopher Bellamy. I will be meeting Sir Christopher shortly and putting forward the concerns I have heard expressed by the professions in Wales. I have some hope that this will lead to some improvements. Equally, it is right that the legal aid means test is being reviewed, and we hope to hear the outcome of that review soon.
But we are under no illusions. There is no prospect of returning to the scope of work for which legal aid was once available. Criminal defence work will continue for the most part to be substantially undervalued. So too will publicly funded family work. And nothing under consideration is going to reverse the obliteration of civil legal aid.
All of this, I am afraid, speaks of a government in Whitehall which has undervalued the importance of the justice system in general, of the law, and of the legal professions in particular.
So just as I have been critical of ministers disrespecting judges, so too I must strongly refute the Home Secretary’s suggestion that “activist lawyers” frustrate the business of government, and that helping people exercise all of their rights and utilise every avenue available to them is “playing a system”. The Prime Minister too said that the criminal justice system was being “hamstrung … by lefty human rights lawyers”.
This kind of language is not just ill-conceived – it is unacceptable.
For our part in the Welsh Government, we see the legal professions as a vital public service and an essential component of a functioning democracy. Empowered citizens require legal support and advice in all kinds of circumstances. Governments should do everything in their gift to ensure that support and advice is in place.
The legal sector in Wales
We want to work with the professions to grow their presence in Wales, whether that is through investing in technology and infrastructure, supporting more young people entering the law, or whatever else we can do to give all parts of Wales a thriving and healthy legal sector to meet the needs of local people, businesses and communities.
And a big part of how we will do that is by establishing a Law Council of Wales, bringing together the different elements of the legal professions, law schools, judges and others with a stake in legal education and practice in Wales.
That Council will be entirely independent of both Welsh and UK Governments, but we have taken the initiative in getting the ball rolling, purely because someone had to.
Regular attendees at this conference will know that establishing a Law Council was a recommendation of the Thomas Commission, and was the subject of a lively breakout discussion last time this conference took place, in the University of South Wales in Pontypridd in 2019. In a world without Covid, I am sure the Council would have been established some time ago.
But I am delighted to say that almost all of the pieces are in place, and the new Council will be operational imminently.
The Council will be a forum by which the whole Welsh legal community can agree priorities, establish working groups, and collaborate with each other – and with Welsh Government – to support the growth of the legal sector and further the interests of the law.
Its work will be taken forward in between meetings by an executive, and I am delighted to have received significant interest in serving on that executive from law schools, solicitors, barristers and others. I have now invited the potential members of that executive to come together for an initial meeting in a few weeks, and I hope the full Council will meet soon afterwards.
The purpose of the executive is to ensure that the Law Council does not just talk about the challenges facing Wales’s legal sector, but formulates and takes forward a plan for addressing those challenges. But ensuring that progress happens between meetings requires effective administration, so I am particularly grateful to the Law Society’s Wales office for offering to provide the secretariat support for the Council, as well as two Members of the executive itself.
Finally, ensuring the Council meets its ambitious objectives will require leadership, and who better to lead it than the person whose initial vision for an Institute of Welsh Law inspired the Thomas Commission to recommend the Law Council? That person is of course also the most senior sitting judge to come from Wales, so I am delighted to be able to tell you that Lord Lloyd Jones of the UK Supreme Court has kindly agreed to serve as the inaugural President of the Council.
As the Law Council will be independent from government, it will be for the Council itself to determine its constitution and whether it wants to keep the arrangements which we have developed in consultation with the sector.
There will need to be a review at the end of the Council’s first establishment year to ensure it is operating as intended.
But I hope in the meantime you will all welcome it as an important development and a vital forum not just for airing issues affecting the professions, as we can do at events like today’s, but for agreeing collective action to address them.
Let me now bring my remarks to a close. I hope I have given you a flavour of what we in the Welsh Government believe, what we are doing about it, and what else we would like to do about the future of law, justice and the legal sector in Wales.
In short, we believe that for the people of Wales to feel empowered in their own lives, they need two things. They need to feel that they have proper influence over the laws that govern them, and they need to feel that those laws will be applied fairly.
I have tried to set out what is standing in the way of that feeling of empowerment, and some of our vision for how things could be different. I hope the UK Government will listen – the choir of voices shouting for change is louder and more irresistible than ever.
But as my final message, I hope you will lend your own voices to that choir. You can do that by engaging with the Constitutional Commission as it seeks the views of people across Wales, or if that is too abstract, you can do it by engaging with the Law Council of Wales as it begins its mission to strengthen our legal professions and strengthen the law in Wales. I am proud of what we have done together, and optimistic about what we will go on to do.
Diolch yn fawr.
The Counsel General’s speech at the Legal Wales Conference can be found below. A full recording of the plenary sessions will be uploaded to Legal News Wales in due course. (To sign up to our notifications, click here.)