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Jeremy Miles MS, Counsel General and Minister for European Transition

First published:
23 March 2021
Last updated:

This was published under the 2016 to 2021 administration of the Welsh Government

Members will be aware that following the outbreak of Covid-19 in early 2020, we had to take the difficult decision to pause most work on taking forward the recommendations of the Commission on Justice in Wales.

The decision to pause was taken because of a need for both ministers and officials to focus on the urgent needs of the day, as well as the need for all parts of the justice system to prioritise devising and delivering plans to ensure the continued delivery of justice on the safest possible footing.

In particular, it has not been possible to progress substantively the detailed discussions with the UK Government that are necessary to consider properly the full range of findings in the report. I do, however, welcome confirmation from the Lord Chancellor in person to ministers and at the Legislation, Justice and Constitution Committee in this Senedd that the UK Government remains willing to have discussions on the report.

However, Covid-19 has not removed the requirement for the Welsh Government to carry out functions in the justice sphere. On the contrary, the pandemic has required us to engage more closely than ever in ensuring the continued safe operation of different elements of the justice system. For example, we worked to ensure that tribunals such as the Mental Health Review Tribunal for Wales and the Special Educational Needs Tribunal for Wales had the legislative authority and the administrative capacity to manage cases virtually, and made contingency arrangements to allow hearings to take place in front of a single judge or to be dealt with on the papers. These contingency arrangements have not to date been needed. I am grateful to the members, staff and users of the tribunals who have adapted so effectively to the changed arrangements for the delivery of justice.

In particular, our responsibility to protect public health has also led to an unprecedented rate of creation of criminal offences in devolved legislation. In creating these criminal offences we have been required to consider at pace what our approach should be to questions such as appropriate levels of penalties, means of enforcement and the powers of those who enforce criminal law in Wales in the light of our obligations under the European Convention on Human Rights.

This process has further highlighted the flaws in the current devolution settlement which were identified by the Thomas Commission. In requiring the Government to consider the matters set out in the paragraph above, the pandemic has demonstrated the inability to sensibly extricate justice functions from other governmental functions. In short, it has shown the clear need for the Welsh Government to develop justice policies despite it not receiving any funding for that purpose and often not being in possession of the necessary information about performance in the justice system.

The experience of the pandemic has also shown that, contrary to what some defenders of the status quo have previously argued, police, courts and most importantly the public in Wales are capable of understanding and managing situations where the criminal law varies between Wales and England.

If re-elected, therefore, this Government would take forward the promised discussions on the Thomas Report, and the case it makes for devolution of justice functions.

Given the continuing need to consider matters of justice, the Cabinet Sub-Committee on Justice chaired by the First Minister has continued to through the pandemic period.

Finally, although we have not yet pursued discussions with the UK Government on the Thomas Commission’s report as a whole, where it has been possible to advance particular items within the report, we have continued to do so.

For example, we were pleased that the Civil Procedure Rules Committee agreed last year to take forward the report’s recommendation that there should be a requirement that public law challenges against authorities in Wales must now be issued and heard in Wales.

The Deputy Minister will be providing a further update to members next week on progress of the Blueprints for Female Offending and Youth Justice, which contribute towards achieving those recommendations of the Thomas Commission that can be progressed under the current settlement.

Significant progress has also been made in establishing a Family Drug and Alcohol Court (FDAC) pilot site in Wales. The application from South-East Wales Local Family Justice Board to run a pilot has been successful and planning for the pilot is now underway ahead of the FDAC commencing activity in the autumn.

I can also advise Members of progress in the creation of the Law Council of Wales. The Thomas Commission recommended a Law Council should be established to be a “voice for legal Wales” – an umbrella body which would also promote collaborative working and provide shared resources for those working in the unique Welsh environment. It is important that the Law Council is independent from government, but I committed to facilitate its inception by bringing together potential participants and seeking to ensure it was established on a stable and sustainable footing.

I am very pleased that the Law Society has agreed that its Wales office can provide the secretariat support that is needed for the Council and facilitate the Council’s establishment. This is an important contribution to the sector as a whole, going beyond the solicitors which the Law Society represents, and will allow the Council to meet, establish its own terms of reference and ways of working, and set its own agenda. I am grateful to the Law Society, and the Government looks forward to working collaboratively with the new Law Council in considering its proposals to ensure a strong and sustainable legal sector for Wales.