Law Society Annual Lecture Administration of Justice in Wales

Introduction

I am honoured to follow in the footsteps of so many distinguished speakers who have reflected on the administration of justice in Wales – many at the annual Law Society Lecture at the National Eisteddfod. Honoured, but also somewhat apprehensive of following such eminent Welshmen as Professor Thomas Glyn Watkin and His Honour Mr Justice Roderick Evans. In addition, Lord Judge, Lord Chief Justice of England and Wales, gave a lecture at the recent Legal Wales Conference here in Cardiff.

May I too pay tribute to Rhodri Morgan who is here this evening. Rhodri often refers to the success of Wales during his decade in office in terms of the country’s victory in the six nations, the popularity of Doctor Who, or the opening of the new John Lewis store in Cardiff. Typically modest. On becoming First Minister, Rhodri pronounced:

‘My number one target… is to survive until the half-term recess at the end of this week.’

Over the next week – and indeed over the 500 which followed – Rhodri did far more than just survive. Wales has thrived under his leadership. It is a nation proud of its past, determined in shaping its present and excited by the possibilities of its future. A nation which, since devolution, has grown in stature and confidence, as Rhodri demonstrated in his powerful Political Archive lecture last month.

This is a fascinating time for everyone with an interest in the politics of Wales and its role within the UK, as we await the appointment of the new First Minister and reflect on the findings of the All Wales Convention.

It was Sir Emyr Jones Parry who conveyed the invitation to speak this evening. Em, who I count as a good friend, was the Political Director of the Foreign Office when I arrived there as Foreign Secretary in early June 2001. He was a diplomat and public servant of huge talent and astonishing diligence on whom I came heavily to rely as our Permanent Representative to NATO and then from late 2003 in one of the most challenging diplomatic posts of all, as our Permanent Representative on the UN Security Council. But as they say in the criminal courts, Em, like me, has ‘form’. Our paths first crossed when he was president of Cardiff University’s students’ union and I was president of the NUS. Unusually for either a student politician or diplomat, Em had read a really hard subject at university – theoretical physics – and then an even tougher branch of that – polymer physics – for his doctorate at Cambridge.

I want to thank Emyr and his team on the All Wales Convention for their important contribution to the debate over the next step in the devolution of Wales. I will touch upon some of the specific points the report raises about the legal system later on.

My theme this evening will be the administration of justice in Wales – how it has developed over the last decade, and questions which arise for the future. I am here today, of course, as an Englishman, but an Englishman with a longstanding interest in Wales, its people and its politics – and one who was heavily involved in discussions on Welsh devolution in the 1990s. I also speak to you as Lord Chancellor and Secretary of State for Justice, with general responsibility both for the judicial system, the courts, civil and criminal law, and for constitutional affairs. This means I am mindful both of the legitimate expectations of people across the UK for different forms of self-government, but also of how our constitutional arrangements fit together to guarantee the future of the Union.

Legal History of Wales

I start with two linked aphorisms: that ‘a man with no history has no future’ and ‘a nation without a history is like a man without a memory’. In looking ahead to the future of the administration of justice in Wales, it is first necessary to examine its historical development.

Professor Thomas Glyn Watkin’s fascinating book ‘The Legal History of Wales (2007)’ highlights an obvious but often overlooked truth: that the legal history of Wales is bound up in its relationship with England and English law. So, for example, the remarkably enlightened tenth century laws of Hywel Dda were abolished by King Edward I and replaced with the English system of counties, sheriffs and justices, on the tendentious but convenient claim by Edward’s Archbishop of Canterbury Archbishop Peckham, that Hywel Dda’s system ’emanated directly from the Devil’.

This pejorative theme continued for centuries. The 1536 Act – which later became known as the Act of Union – declared its intention ‘utterly to extirpate and singular the sinister usages and customs in Wales’. The Act subjected the Welsh people for the first time to the same laws and – most controversially at the time – the same language as the English. Its successor, the Act of 1543, established a system of superior courts, the Great Sessions, to administer the common law of England and equity (as developed by the Chancery Courts) in Wales. The Court gave Wales a uniform legal identity related to but distinct from England until its abolition in 1830, when by complete procedural assimilation the countries became one unified jurisdiction.

Nearly two centuries later, England and Wales continue to share a legal system. But over the last decade the constitutional context has changed dramatically. We have seen new devolved administrations in Scotland, Northern Ireland, London and of course here in Wales. The government of Wales Act 1998 established a National Assembly for Wales and gave the Welsh people a voice in many of the key decisions affecting them. That legislation was followed by the 2006 Act, which developed the 1998 constitutional settlement – with a formally separate Welsh Assembly government and the prospect of the Assembly gaining law-making powers in 20 broad areas.

Impact of devolution

So, power has shifted away from Westminster and Whitehall. Institutions have been established to allow distinct national identities to thrive within a shared UK identity. Political debate has been energised and policy-making improved by the creation of new political structures. Devolution continues to deliver benefits to all parts of the Union.

Peter Hain aptly described the impact of devolution on Wales in his recent speech here at Cardiff University:

‘Wales has benefitted from devolution – a nation quite transformed from the one we all knew twelve years ago. And transformed very much for the better. More self-confident. More vocal. More democratic… Welsh identity is flourishing as never before; but as a confident country which is part of a strong United Kingdom.’

The Welsh people are now developing their own, local solutions to the particular problems they face. Wales is making its own laws – at an ever increasing rate – through Legislative Competence Orders (LCOs) and the inclusion of Framework Powers in UK Bills. Law-making powers have been devolved to the Assembly in 46 different areas, including health, planning, education and local government. Welsh Ministers now have powers under several hundred Acts of Parliament and over 1,000 pieces of subordinate legislation specific to Wales.

The unique quality of the 2006 Act is, as Lord Dafydd Elis-Thomas said in his recent speech, ‘its potential to enable Wales’s constitutional system to evolve according to the will of the people of Wales.’ This incremental approach to devolution is in keeping with Britain’s history of ‘constitutional gradualism’, and lends the process an adaptive and flexible quality. This has aided the development of the administration of justice in Wales, by facilitating changes that reflect the views and aspirations of the Welsh people.

Welsh Legal Institutions

Devolution has had a power and influence well beyond the specific scope of the 1998 and 2006 Acts. Justice, policing and the civil and criminal law have not been formally devolved, but big changes have been made within these systems to acknowledge and to respect the devolution settlement.

One of the most significant changes occurred with the creation of Her Majesty’s Courts Service in 2005. At that time the four Welsh Magistrates’ Courts Committees came together with the old Wales and Chester Circuit. HMCS Wales was created the following April, at which point Cheshire joined the Northern Circuit and ceased to be administered alongside Wales. It was clear at the time, from the number of people who argued passionately both for and against the decision, that this was both symbolically and practically a defining moment.

Some believed the change would lead to the marginalisation of Wales within the justice system for England and Wales. Others believed North Wales, in particular, would suffer. Neither of those fears has been realised. Quite the reverse: HMCS Wales has been a remarkable success. The Crown Court in Wales was recently praised by the National Audit Office for its efficient throughput and disposal of cases. Wales routinely tops the table on performance against CJSSS (Criminal Justice: Simple, Speedy Summary) targets. And in October, Wales became the first HMCS region to win accreditation to the government’s Customer Service Excellence standard.

The move which aligned the courts with other justice agencies across Wales created a Presiding Judge for Wales and an identifiably Welsh judiciary and magistracy. Further Welsh legal institutions have developed as a result, including the newly-formed Association of Welsh Judges – of which the Lord Chief Justice of Wales and England is President – and the Wales Magistrates’ Bench Chairs Forum.

The establishment last April of the Administrative Court in Wales was an equally significant landmark. This properly reflects the fact that cases challenging administrative or political decisions taken in Wales should wherever possible be handled and heard in Wales, allowing the Welsh people to hold their government to account. I am delighted that the new Administrative Court enjoyed the support of the Welsh Assembly, the Welsh Committee of the Administrative Justice and Tribunals Council, the Law Society in Wales and the Bar.

I fully endorse what the Lord Chief Justice said in October about the importance of making sure that administrative cases relating to Wales are routinely heard in Wales. He noted:

‘Judicial review proceedings concerning any devolution issue arising out of the 2006 Act, for any issue concerning the Assembly of Wales, or the Executive of Wales, or any public body, including a local authority in Wales not only may be started in Cardiff as well as London, but should be started in Cardiff, and if for any reason started in London, by someone from Wales or bringing the proceedings because of an interest in Wales, the proceedings are likely to be transferred to Wales.’

I am pleased to hear that judges in London are now tending to transfer cases with a Welsh connection to Cardiff. I understand that nearly 40 such cases have been transferred to the Cardiff Court already. This is in addition to the recent welcome development of twice yearly sittings of the Court of Appeal in Wales.

Bilingualism in the Justice System

With the evolution of distinctively Welsh legal institutions comes the need to think carefully about the way in which the Welsh language is used within the justice system. As Em and I were causing trouble in our respective universities, the Harold Wilson government in the late 1960s got on with passing the Welsh Language Act 1967, which for the first time established the principle of ‘language of choice’. We have made great strides since then to support bilingualism in the justice system – to respect the needs of those whose preferred language is Welsh, and to sustain the health and growth of the Welsh language.

I am a grizzled veteran of the vagaries of IT systems in government. After many long and painful years, the magistrates’ courts IT system, Libra, has now been introduced across Wales in a bilingual format. It has two important features. One is that all documentation produced by the courts, such as summonses, orders and warrants, can now be produced in both Welsh and English. Secondly, the system will allow justice agencies in Wales to record an individual’s language of choice when they first come into contact with the system, and thereafter for that choice to be communicated electronically between the police and the courts. Thus many of the criticisms levelled at the system by the 2007 report commissioned by the North Wales Local Criminal Justice Board will be addressed.

The Welsh Language Board rightly criticised my Department for the delay in introducing a bilingual Libra system. But it has recently been generous in its praise of what has been achieved, and is optimistic about the impact Libra will have on the experience of Welsh-speaking court users.

We are making progress in other areas. I decided recently that the Advisory Committees which appoint magistrates to Benches in Wales will be able to take into account the need for Welsh language skills on the Bench and advertise some vacancies as requiring the ability to speak Welsh. This should ensure that there are sufficient Welsh-speaking magistrates to handle the increasing number of cases where the Welsh language is used.

The Lord Chancellor’s Standing Committee on the Welsh Language (chaired by Mr Justice Lloyd Jones) has done some excellent work to address issues of bilingualism in the criminal, civil and family justice systems. It was under the Committee’s aegis, for instance, that the Cyfiawnder Cymru network was established to improve joint working in the field of bilingualism. The network has already successfully piloted Welsh language courses for beginners across the criminal justice system, and aims to introduce these throughout Wales next year.

I know more needs to be done to support people who wish to use the Welsh language in the justice system. As the All Wales Convention report notes, the implications of bilingualism need to be considered at an early stage of policy development. My department has just published a consultation on our proposed Welsh Language Scheme, which should help to address this. The scheme explains how we intend to give effect to the principle of equality between the English and Welsh languages when providing services in Wales. I encourage anyone with an interest to respond.

I could not discuss bilingualism in the context of justice without mentioning the longstanding issue of bilingual juries. I am conscious that we consulted on this some considerable time ago, and it would have been reasonable to expect a response by now. But the issue has not been easy to resolve. The main difficulty is that this would involve interfering with the fundamental principle of random selection of juries from the population at large. Random selection guarantees the diversity and representative nature of juries on which so much of the authority of the jury system is based. Of course, in strong Welsh speaking areas random selection will already tend to produce Welsh-speaking juries, but I acknowledge the strength of feeling among some in Wales who would like to see bilingual juries everywhere. I hope I will be in a position to make an announcement on this shortly.

Future of Administration of Justice in Wales

I began my lecture with a reference to the importance of our mutual history. That is because the point at which we’ve arrived today can only be explained by the journey we’ve been on, both separately and together, for the last ten centuries. It is because the history of relationships and developments in and between Wales and England are so profoundly different than those between Scotland and England that parallels with Scotland are unlikely to be appropriate. The most important difference is that the Scottish judicial system never became part of the English system, even after the Act of Union in 1707. Its judicial institutions and professions, along with many other aspects of its national life, stayed completely distinct. For reasons everybody understands, that has not been the case in Wales.

The reinforcing point is a geographic one. There are 50 miles or so either side of the border between England and Scotland which, even today, are remarkably unpopulated. 150 miles separate the main metropolitan areas of North West England and those in the central belt of Scotland. But that has never been the case in North and central Wales, and since the opening of the Severn bridges, it has not been the case in South Wales either.

This does not remotely mean we cannot do anything, but it does mean that we have to take account of the realities and the fact that we have a conceptually single system of law in England and Wales.

The All Wales Convention report is clear that ‘a separate Welsh jurisdiction is not a precondition for the development of increased legislative competence for the National Assembly for Wales’. But some argue that if the Assembly were to acquire full law-making powers, the increasing divergence between the law in England and Wales would make it difficult to sustain a single, unified jurisdiction.

My strong advice is that there are overwhelming arguments against a move towards separate jurisdictions. No one should underestimate the enormous practical implications. Would decisions of the English courts become merely persuasive in Welsh cases, rather than binding, for example? Would a separate legal profession need to develop, with its own systems of professional regulation? Could Welsh judgments be enforced against English defendants, or Welsh proceedings served in England? Such a large and ambitious project would certainly require primary legislation, and there would inevitably be an expectation for it to be approved by a referendum.

Moreover, it does not follow that, because there are different legal texts to be applied on each side of the border, there needs to be separate jurisdictions by virtue of those differences alone. Our courts are well used to considering bespoke texts, related to specific geographical areas or circumstances, and in areas ranging from public law to contract. What underpins a common jurisdiction is a common jurisprudence, system and procedure. What this means, I suggest, is not no change, but the possibility, if there is consent for this, of an organic development of greater autonomy of the Welsh system, building on what has already happened over the past 10 years, but within a common jurisdiction.

I should say that none of this negates the need to develop a single, accessible record of Welsh law, as the All Wales Convention Report recommends.

A related question is how the Welsh legal professions should respond to the changing environment in which they operate, and how to make sure we have the right legal skills in Wales to support devolved government.

In his speech to the Legal Wales Conference, Sir Malcolm Pill Lord Justice of Appeal; former Presiding Judge, Wales and Chester Circuit explained:

‘It is in the interests of the administration of justice in Wales if more of the quality legal work which arises from the activities of public bodies in Wales and from commerce, is done by lawyers… based in Wales.’

We are already seeing new specialist criminal and civil chambers in Cardiff and a growing number of practitioners specialising in Welsh public law. But as the Law Society acknowledged in its evidence to the All Wales Convention, ‘there remains a need for their number to grow and for an increase in the support available to them through education and training.’

Legal education is crucial. Those who provide legal education in Wales (such as Cardiff University) are in a unique position to form the next generation of Welsh lawyers, and thereby to shape the future development of the law and the legal identity of Wales. As Richard Owen of the University of Glamorgan has highlighted, legal education providers need to think carefully about how they develop linguistic skills training, expertise in Assembly law-making, understanding of the political context of devolution, and so on.

The challenge for the legal profession itself is to grasp the opportunities afforded by the new Administrative Court and the growing body of law particular to Wales, to put themselves in a position to be able to compete for work which might otherwise be provided by English lawyers, and to show that they have the ambition to develop Wales as a centre of legal expertise. As the All Wales Convention noted, this is crucial not only for the future of the profession itself and law-making in Wales, but for the social and economic development of the nation as a whole.

Then there are questions for the future about tribunals in Wales. The current system is complicated, with devolved tribunals being administered by various Welsh Assembly government departments and local authorities, and non-devolved tribunals by the UK Tribunals Service or UK government departments. The tribunals have developed on an ad hoc basis. Some have modernised significantly, but others are somewhat fragmented, lacking in resources, or not sufficiently independent from the departments whose decisions they consider. I know this was one of the themes of the recent conference of the Administrative Justice and Tribunals Council.

I am pleased that the Council’s Welsh Committee is currently conducting a review of tribunals in Wales, with a focus on the devolved tribunals. I look forward to the Committee’s findings on this important subject.

Finally, in my own Department there are specific issues about the management of offenders in Wales – notably the lack of prison in North Wales, and provision for women offenders across Wales.

My colleague Maria Eagle announced at the end of October a new search for prison sites to serve areas with the greatest demand for places. One of these is, of course, North Wales. We are currently working with the Wales Office, the North Wales Criminal Justice Board, the Welsh Assembly Government and local authorities to identify potential sites. We will look favourably upon any North Wales bid which meets all of our criteria. A new prison in North Wales would allow us to keep prisoners closer to their home areas, so important family and other links can be maintained.

I know there have been calls for a women’s prison in Wales. I’m afraid I can’t announce today plans to build a women’s prison. The approach the government is taking, in response to Baroness Corston’s recommendations, is to find ways of reducing the number of vulnerable women held in custody. We have therefore devoted £15.6 million over two years to improving provision for women offenders in the community. As part of this, Safer Wales has been awarded £500,000 to develop the Women’s Turnaround Project. An additional £225,000 has been granted through our diversion from custody programme, which is likely to focus on improving services for women offenders and women at risk of offending in North Wales.

Conclusion

At this time of change in leadership and renewed focus on the future of devolution in Wales, I believe we have a justice system which has responded to the challenges of working in a devolved and bilingual environment. One which operates as a distinct – but not separate – part of a single jurisdiction of England and Wales, with all the benefits for Welsh citizens that provides.

Our aim now must be to build on these strong foundations – supporting the further development of a distinctively Welsh legal identity, within the framework of a non-devolved system. Distinct, but not separate.

To close with the words of Professor Thomas Glyn Watkin, Wales has established:

‘A legal culture which combines a readiness to assimilate what is good in other traditions with a jealous determination to preserve the best of one’s own… There is… no reason for doubting that Wales will continue to develop in a manner true to its rich legal heritage while contributing fully to the larger world of which it is not an adjunct but an integral part.’