Go your own way

Mick Antoniw MS, counsel general for Wales and minister for the constitution, has a bust of Karl Marx on his desk in Ty Hywel, part of the Senedd estate in Cardiff Bay. Newly reconstructed Labour leader Sir Keir Starmer KC would probably disapprove, but Antoniw is amused when I mention it.

‘Ah, you recognise him,’ says Antoniw cheerfully. ‘Most people come in and ask what I’m doing with a statue of Beethoven.’

Antoniw certainly has an impeccable pedigree for a socialist politician. Cutting his political teeth at the National Union of Students, he graduated via a law degree in Cardiff to a traineeship at trade union firm Thompsons. He stayed at Thompsons for 30 years, rising to become a senior partner before leaving in 2011 on being elected to Senedd Cymru (the Welsh Parliament).

Antoniw can lay claim to rarer qualities for a senior British politician, though. His Ukrainian father came to Britain after the war and his son speaks the language fluently. A real political asset at present.

I also note the framed front page of a Ukrainian newspaper – undecipherable to me – hanging on the wall behind his desk. I do not ask the counsel general to translate, because I am not there to talk about his work for Ukraine in the aftermath of Russia’s invasion. But it certainly merits a mention: Antoniw was in Ukraine on the eve of the 24 February 2022 attack and has relatives fighting in the war. Just last month, he drove a 4x4 containing ration packs, winter clothing, sleeping bags, and medical supplies to Lviv in the west of the country. He has been awarded an order of merit by the Ukrainian government.

What I do want to talk to the counsel general about is the future of the justice system in Wales. A dry subject in comparison to Ukraine’s predicament, yet in its own, smaller way intriguing. And highly significant for lawyers on both sides of the border with England.

'It’s disappointing that the government has chosen not to engage with the issue of how to improve the delivery of justice in Wales'

I have about 40 minutes before Antoniw must cross the road for first minister’s questions in the Senedd. It is enough. He speaks fluently and passionately about the urgent need to forge ahead with the devolution of justice policy and funding to Wales, as recommended by the landmark 2019 report of the Commission on Justice in Wales (see box, below).

Antoniw speaks impatiently, too. Covid supervened a few months after Lord Thomas of Cwmgiedd’s commission reported, but it is not only the pandemic that has impeded progress. The Conservative government at Westminster remains implacably opposed. Llanelli-born Robert Buckland KC, former lord chancellor and Welsh secretary, is one of several ministers to have publicly dismissed the report.

Antoniw must do what he can, then. Over the last year, the Welsh government has been working with the Ministry of Justice on a ‘triage’ of the commission’s 78 recommendations, to identify where progress might be possible. Officials agreed to focus on 14, but the MoJ has indicated a willingness to proceed on only five (see news, p4). These include enhancing the accessibility of digital courts, dispute resolution and other digital services for users in Wales; and providing help with this in both the Welsh and English languages.

‘It’s disappointing that, in many ways, the government has chosen not to engage with the issue of how to improve the delivery of justice in Wales,’ says Antoniw. ‘The whole thinking process about devolution of justice is certainly better understood [since Thomas], and part of our challenge is to get it better understood more broadly.’

Many of the powers over justice may be reserved, but the Welsh government funds and still has responsibility for large elements of the justice system. And if one looks beyond what appears to be an impasse, the ground is continuing to shift beneath Westminster’s feet.

For example, Thomas was the spur for the establishment in November 2021 of the Law Council of Wales, a forum ‘by which the whole Welsh legal community can agree priorities, establish working groups, and collaborate with each other – and with the Welsh government – to support the growth of the legal sector’. The council is led by former Supreme Court justice David Lloyd Jones.

‘That was really important, because what it does is combine for the first time all the different aspects of the courts and legal provision, and in particular the universities,’ says Antoniw. ‘Bringing all those facets together, you can see the Welsh justice system within a specifically Welsh context.

‘It brings an understanding that, here in Wales, the world of law is changing. Here we have a parliament that is passing legislation and beginning to do things differently. So although we still are part of the England and Wales jurisdiction, in reality the nature of that jurisdiction had changed. And establishing the Law Council was in many ways a recognition of that.’

As Cardiff makes more of its own laws, the risk is that the justice system in Wales becomes ever more dysfunctional. New laws add to a confusing patchwork of remits and responsibilities, so it becomes even less clear who is accountable for what, and who needs to talk to whom to ensure that the administration of justice is coherent and consistent.

‘One of the arguments for devolution of justice is that it ties in with education; it ties in with health; it ties in with social services,’ Antoniw stresses. ‘All those areas are devolved. The dysfunction [arises] because the ability to plan justice, to look at how you deliver justice, ties in with so many social justice elements that are devolved.’

This point is forcefully made in a book* by Robert Jones and Richard Wyn Jones, The Welsh Criminal Justice System: On the Jagged Edge, published last October. It provided the first-ever academic account of Wales’ criminal justice system. The book details how that system operates across what it describes as the ‘jagged edge’ of devolved and reserved powers. Not only does that system preside over some of the worst criminal justice outcomes in Europe, it is structurally incapable of attending to its own problems, the authors argue.

Finding solutions to those problems is doubly problematic, stresses Antoniw, because of the lack of Wales-specific data. ‘One of the real challenges we have in terms of developing policy is disaggregating data [to diagnose] the state of justice in Wales,’ he says. ‘You have England and Wales data. You don’t have Wales data – the data you need to determine justice policy.

‘I attended the launch of the book and I was really shocked. We just didn’t know that, pro rata, Wales has the highest imprisonment levels in the whole of Europe. We also have a situation where, of those who are in prison or on probation, something like two-thirds are from non-white backgrounds. Just taking those two facts alone shows you there is something very, very wrong with the justice system.’

He adds: ‘One of the real problems with justice reform, as I see it, is that too much of it is tied into the constitutional debate – who controls this, who controls that. The England and Wales jurisdiction, has it served us well over the centuries? Whereas, in reality, the “jurisdiction” is just about the administration of justice – where the cases are heard, how they are administered. The real question is how can justice itself be delivered better.’

'The dysfunction [arises] because the ability to plan justice, to look at how you deliver justice, ties in with so many social justice elements that are devolved'

Though law and justice policymakers in Wales must continue to operate within tight constitutional constraints, they are not without agency. While courts and tribunals are substantially reserved to Westminster, notes Antoniw, there is a body of devolved tribunals that falls under the supervision of the president of Welsh tribunals. These cover areas such as agriculture, mental health and special educational needs – tribunals that ‘came to us in a very fragmented way during the course of devolution’.

In 2022, the Welsh government endorsed the Law Commission’s report Devolved Tribunals in Wales, which called for the creation of a unified system comprising a First-Tier Tribunal divided into chambers and an Appeal Tribunal for Wales. A tribunals bill is expected to be brought before this Senedd session.

‘It’s the first time we’ll have those [tribunals] together, independent of government and within a proper structure,’ says Antoniw. ‘And it will see the first appellate court established in Wales, ever.’

A residual benefit is that the reforms will ‘future-proof’ the system by creating a structure capable of easily absorbing new jurisdictions.  

'We just didn’t know that, pro rata, Wales has the highest imprisonment levels in the whole of Europe. We also have a situation where, of those who are in prison or on probation, something like two-thirds are from non-white backgrounds'

Elsewhere, says Antoniw, ‘we’ve engaged with the Ministry of Justice where, in partnership, we will try and improve the delivery of justice’. He mentions the Family Drug and Alcohol Court pilot launched in Cardiff in 2021. This is a non-devolved initiative but was nevertheless allocated Welsh government money because it aligns with Cardiff’s social justice goals. An interim evaluation of the pilot was broadly positive and there are plans to expand the model – Merthyr Tydfil could get a ‘problem-solving’ court next, Antoniw tells me.

Less progress, regrettably, has been made in attending to the ‘appalling’ state of the Cardiff Civil and Family Justice Centre.  Says Antoniw: ‘If we want to develop the law, if we want to develop commercial law, we want somewhere in our capital city where people want to bring cases. You’ve got to have facilities that are fit for purpose – with regard to safety, security, and facilities for users of the court, whether witnesses, defendants or families.’

Antoniw persuaded justice minister Lord Bellamy to visit the court but is not optimistic about an imminent facelift. ‘I don’t know what the outcome was, it’s not a devolved matter,’ he says. ‘The point I keep making is, if justice were devolved we would not be able to get away with the court in our capital city being in the state it’s currently in.’

The counsel general updates me on other aspects of the Welsh government’s agenda for the law and legal sector. There are many items on it.

Examples include: a tender to assess the need for solicitor apprenticeships in Wales; improving the accessibility of Welsh law through the introduction of a consolidation bill into the Senedd; a new study of the future of the small Welsh law firm, in conjunction with the Law Society’s Wales office; and an anti-racism action plan for Wales (published last June).

Most significant, perhaps, is the Independent Commission on the Constitutional Future of Wales, set up last year as part of a deal between the Welsh Labour government and Plaid Cymru. In its interim report last month, the commission set out three principal options for the nation’s future – ‘entrenched’ devolution;  a federal UK; and full independence. Devolving justice was acknowledged as something that could be taken forward under either of the first two options.

Of course, it is by no means certain any of the three options will prove achievable,  even in the event of a Labour government winning power at Westminster. But Antoniw is upbeat: ‘If there were a change of government, I think the door opens in terms of much more decentralisation of power.’

He cites in evidence former prime minister Gordon Brown’s Commission on the UK’s Future, whose report endorses pushing power away from Westminster.

‘We are starting work now, no longer in terms of the argument for devolution of justice, but really how we will administer it when it happens,’ Antoniw maintains.

Youth justice and probation are key areas Wales would seek to take control of first: ‘Those would be very significant steps, tying in very much with our social justice agenda,’ he says.

What comes after that? ‘Well I think it’s incremental,’ Antoniw replies. ‘I don’t think you would ever get to a stage when you suddenly just snap your fingers and the whole of justice is suddenly going to go over.

‘What we’ve been adamant in making clear is that there is no need for any barriers or boundaries within the existing jurisdiction [for practitioners]. As a Welsh lawyer, I practised in England; we have English lawyers practising in Wales. There are all sorts of mutual benefits.

‘There is so much mythology that comes out in people’s perceptions of devolution. It’s important that we reassure the legal professions.’

‘Relax’ seems to be the message to Gazette readers.

There is no prospect of two lots of PC fees quite yet.

 

Read: Split ends – and means

 

* The Welsh Criminal Justice System: On the Jagged Edge by Robert Jones and Richard Wyn Jones is published by University of Wales Press (£24.99)