'Jagged edge of devolution'

Law Society president I. Stephanie Boyce’s official visit to Wales (29-30 June) came at a time of unprecedented flux for legal services across the Severn. Just weeks earlier two of its most senior politicians had issued demands for a root-and-branch overhaul of the nation’s legal system. 

In May counsel general Mick Antoniw and minister for social justice Jane Hutt, elected members of the Senedd, published ‘Delivering justice for Wales’. This document outlined principles for a radically reformed justice system in Wales, calling for a new policy based on prevention.

The document’s authors pulled no punches. Antoniw stated: ‘The policies of successive UK governments since 2010 have firmly pulled the shutters down on access to justice, threatened fundamental rights and protections, and removed vital funding for the delivery of legal services.’ Hutt concurred, pointing out that even where present policies have reduced crime, the consequent savings have not been ploughed back into Wales. ‘Devolution must happen,’ she reiterated, ‘so all this money can be reinvested in meeting Wales’s urgent needs.’

The authors have considerable authority to back up their proposed changes, founded as they are on the landmark Thomas Commission report of 2019 which recommended that Cardiff wrest full control of both justice policy and funding from London. The UK government remains opposed to such a radical overhaul.

Wales’s counsel general, like the attorney general across the border, is the Wales government’s principal legal adviser. Hutt’s responsibilities, on the other hand, range across the entire spectrum of social needs, such as the broad imperative to promote prosperity, counter poverty and eliminate slavery, while also robustly tackling domestic abuse, gender-based violence and sexual violence.

Together, Antoniw and Hutt envision a devolved justice system centred on prevention through tackling social challenges (in particular, mental health issues) and rehabilitation rather than – as is the case now – a more punitive approach focused on prosecution and imprisonment.

'As the Welsh government’s policy vision becomes reality, we must ensure that plans for the justice system deliver tangible benefits for the people of Wales'

I. Stephanie Boyce

There are also plans to create an independent tribunal service for Wales which, once the plans reach fruition, ‘will be one of the first building blocks of a future justice system run from Wales’, the document promises.

This is already a full agenda and yet there is still more to come. The document was published against the backdrop of the June 2022 launch of a scheme, in partnership with the Chartered Institute of Legal Executives (CILEX), to bring new legal services apprenticeships to Wales. Due partly to funding issues, Wales has hitherto lagged behind England in rolling out such apprenticeships.

Also, Welsh firms are shortly going to be able to access £100,000 from Welsh government to fund Cyber Essentials Accreditation. This is a certification scheme that helps a firm both guard against online threats and reassure clients that it is committed to cybersecurity. At first sight £100,000 may seem a small sum for the whole of Wales, but there are only 3,500 solicitors in the nation; scaled up to reflect the number of practitioners in England, the investment would run into several million pounds.

Another indicator of Wales’s increasing divergence from England is that the Law Society’s Wales Committee is about to become the National Board for Wales. This is more than a mere bureaucratic relabelling. The new National Board will be empowered to carry out local decision making that reflects the divergence – from the England and Wales model – of legal and political policy. The change is imminent: the next meeting of the Law Society Wales Committee will be its last.

Boyce endorsed the proposals outlined in the document, while stressing the benefits of a joint jurisdiction: ‘As the Welsh government’s policy vision becomes reality, we must ensure that plans for the justice system deliver tangible benefits for the people of Wales. When it comes to regulation, there should be a single regulator [for solicitors], while the jurisdiction of England and Wales must be maintained. Our jurisdiction is recognised as a global legal centre, which brings benefits to England and Wales alike, and this [status] should be protected.

‘This means not creating barriers between England and Wales or anything that could impede the ability of practitioners to work across the single jurisdiction.

‘Finally, future devolution of powers must come with fair and proportionate funding so that they can be effectively exercised too. An underfunded justice system serves no one, whether it is a victim seeking justice or a business pursuing redress in a commercial dispute.  

‘Through these steps we can ensure that the legal sector in Wales continues to grow and thrive, while providing a justice system that accommodates the distinct needs of Wales.’

So far, so good. But some suggest the whole project to reform the law and legal services in Wales is unrealistic or just too expensive. It ought not to be assumed that every Welsh solicitor backs wholesale devolution of justice, as this is most certainly not so. It is a complex picture.

The Gazette raised these questions with Jonathan Davies, the Law Society’s Cardiff-based head of Wales.

‘There is some political urgency to reforming the way legal services are delivered in Wales,’ says Davies. ‘This is being driven by renewed interest in increased devolution and even independence, with Labour – the dominant political party in Wales – and Plaid Cymru, whose constitution commits it to pursuing independence from the UK, leading the charge.

‘The pandemic has given Wales the confidence that it can do things differently. Its lockdown rules, for example, were distinct from those of the other countries making up the UK. The focus on prevention and rehabilitation in the proposed reformed criminal justice system also contrasts with the Conservatives’ “tough justice” approach.

‘There are certainly constitutional anomalies that must be addressed. The Wales government can pass laws, for instance, but does not have control of the justice system, which is administered from Westminster. That is just a single example of what has become known as the jagged edge of devolution, where changes have only been partially implemented and uncertainty persists.

‘Nonetheless, there are growing differences between what is Wales law and what is England and Wales law and those laws that apply only to England.’

Davies concludes: ‘The proposed reforms are more sensible than they are revolutionary – they are only revolutionary at all because they are not happening across the UK as a whole.’

Mark Evans, immediate past chair of the Law Society’s Wales Committee and property solicitor at Welsh border high street firm Allington Hughes, brings a practitioner’s perspective to the reforms proposed in ‘Delivering justice for Wales’.

‘As a profession, we lose talent across the border to England,’ he begins. ‘There are many more opportunities over there, thousands more law firms and very many bigger ones, too. We need to be innovative to attract and retain lawyers, to persuade them to stay and practise in Wales. These proposed reforms are a good beginning.’

Evans stresses that the political connotations around shifting away from the Westminster model for legal services are important. ‘Wales has a Labour government, England a Tory government, with two distinct and contrasting policy ideals. Wales has on certain occasions led the way with forward-thinking reforms, such as charging customers for supermarket plastic bags to help reduce pollution. We are also the first UK nation to make black and minority ethnic history a mandatory subject at school.

‘Perhaps it’s because we are a smaller nation and so it’s easier for us to adapt to change. Or perhaps it’s because Scottish independence is back on the agenda, drawing the public’s attention to our own Plaid Cymru and its aspirations for Welsh independence. Or perhaps it’s because of the Covid pandemic, when the BBC and the UK generally recognised that Wales was able to set its own rules and timetables. Or perhaps it’s a combination of all these factors, but change, albeit restrained by current UK policy and Ministry of Justice rules, is most definitely in the air.’

Mark Davies, senior partner at Swansea firm Goldstones and the present chair of the Law Society’s Wales Committee, is a keen advocate of the Law Council for Wales. This is an umbrella body, founded in 2021, which aims to bring together the various providers of legal services in Wales, such as solicitors, legal executives, barristers and the voluntary sector. Its objective is to coordinate their efforts to deliver – in a more efficient and effective way – justice in Wales. It aims to be a voice for legal Wales by promoting awareness of Welsh law, ensuring the provision of legal resources through the medium of the Welsh language and helping Welsh law schools provide their students with the appropriate education and training to thrive in practice.

'With devolution continuing to expand and develop, and with the likelihood of justice being devolved at some point in the future, the Law Society in Wales must adopt a new modern way of operating'

Mark Davies, Goldstones

In a speech addressed to Boyce and others during her recent visit to Wales, Goldstone’s Davies said: ‘Our involvement in setting up the Law Council of Wales means that the Wales Committee is “punching above its weight” and has much greater potential to influence matters than when it was originally conceived.

‘Indeed, the committee has expanded its work with Welsh government beyond anything the Law Society has achieved before.

‘Consequently, with devolution continuing to expand and develop, and with the likelihood of justice being devolved at some point in the future, the Law Society in Wales must adopt a new modern way of operating.

‘Going forward, I propose the Wales Committee evolves into becoming the National Board for Wales that is directly and only accountable to the main Law Society Board. [In fact, this is the last meeting of the Wales Committee before it becomes the National Board.]

‘This will allow more dynamic local decision making that reflects legal policy and political divergence in Wales. It is also intended to facilitate clearer and quicker lines of decision making and accountability around the work that the National Board of Wales is to undertake in Wales.’

Davies concluded his address: ‘Or put more succinctly, I propose a better, much improved way to represent solicitors in Wales.’