| Lord Richard |
| First of all, thank you very much for coming again.
We are very grateful for what you did for us before and I am sure
we will be equally grateful at the end of the afternoon. |
| But again, would you be kind enough to identify yourselves.
|
| Mr Justice Thomas |
| Shall I introduce everyone. I am Mr Justice
Thomas. I was Presiding Judge of the Wales and Chester Circuit
for 4 years and I am now the judge in charge of the Commercial
Court in London. |
| Sitting immediately next to me is Professor Iwan
Davies, who is a Professor of Law at Swansea University and Head
of the Department of Law there. |
| Next to me on my other side is Phillip Howell-Richardson
who is a partner in Morgan Cole, one of the three major
firms of solicitors based in Cardiff that has a practice that
extends well into England and beyond. |
| Then next to him is Nicholas Cooke QC, who is a member
of the circuit. He has practised in Cardiff for a number of years.
He has experience in criminal law, in civil law and administrative
law. He is Chairman of the Wales Public Human Rights Association.
He sits as a Recorder trying crime and he has also been counsel
to the Children's Commissioner of Wales in the current inquiry being
conducted by him and much else besides. |
| What we had done is that we have divided up between
us the matters which we thought we ought to talk about, but obviously
you may have questions for us. Professor Iwan Davies is going
to deal with the issue of the single corporate personality of the
National Assembly, the question of legislative scrutiny and the appropriate
tests or schemes to delineate the devolution of functions. |
| Phillip Howell-Richardson is going to deal with the
professions and the problems of economic development. |
| Nicholas Cooke is going to deal with the criminal
justice system and I am going to deal with the position of the courts.
|
| Now each of us is going to express his own views,
and those views are attributable only to the person who is expressing
them. I need to make that very clear for two reasons; we are
not giving evidence on behalf of anyone because we do not represent
anyone, but of course we will have all spoken to colleagues. |
| Secondly I am a serving judge and I cannot
express and will not express a view on any political matter and
some of the matters are plainly political. On those I am afraid I
cannot help you. I will do my best to give you such advice as
I can on the various options. Which you choose, I am afraid,
is not a question for me. I want to make that very clear.
My colleagues are not constrained in this way and therefore the views
they express are their views and I have no views one way or the
other on them. |
| I am sorry to make that very clear, but it is
imperative given my position at your inquiry that I would like
to make that absolutely clear. |
| Lord Richard |
| Thank you very much indeed. Shall we start off in
the order you have just presented it. |
| Mr Justice Thomas |
| Could I just ask you one other thing really as
a matter of your decision? Each of us has a little to say by
way of introduction. Each of us could speak first and then deal with
the matters at large, or each could deal with his topic and then we
discuss that before we move on to the other one. |
| Lord Richard |
| It depends how long the introductory statements are?
|
| Mr Justice Thomas |
| Shall we have the first one and then you decide what
you want to do? |
| Lord Richard |
| Take about 5 minutes each, 1, 2, 3 and 4 and then
we will follow it up. |
| Mr Justice Thomas |
| We can do it that way. They will not be more than
that. |
| Lord Richard |
| We will do that and see how we go. |
| Mr Justice Thomas |
| Because you will have heard from me a lot of background
at the seminar and in the discussion that followed. |
| Professor Iwan Davies |
| My remit is to address you on three points. The first
point is the corporate personality of the Assembly. In law all the
powers are powers conferred and exercised in the name of the Assembly.
Powers are exercisable by others when the Assembly chooses to delegate
and when they are exercised, in law, they are exercised on behalf
of the whole Assembly. |
| I refer to the evidence of the Counsel General
who pointed out that the Assembly has now devolved out of its corporate
shell. |
| Whilst the system is flexible and adaptable do
we have at present the right system? In my view, it would be preferable
for the system to recognise two separate bodies; namely, the Assembly
and the Government or Executive. Each body would then exercise appropriate
powers for its sphere. For example, administrative functions would
be exercised by the Government which would in turn be accountable
to the Assembly for its policies in exercising those functions. |
| I would offer two reasons why it would be appropriate
to separate the Executive from the Assembly. First, it appears to
me that it is preferable that the structure of Government in Wales
should reflect the system of allocating powers to the body which is
appropriate to exercise them. Second, separation of powers enables
attention to be focused on how the checks and balances and the relationship
between the Assembly and the Government should be developed. These
are important issues which can be hidden where all power is theoretically
conferred on one body. |
| There is also a compelling case for ensuring that
the powers march hand in hand with the system of Government and how
it has evolved in practice. There is a strong view that the single
corporate body arrangement does cause real practical problems. For
example, the provision of legal advice is an area of potential conflict.
From time to time the Welsh Assembly Government and the Assembly might
require separate legal advice. As the Assembly is a single body
corporate it has to act on the basis of single advice. In my view
that is not satisfactory. The Assembly as a legislative or scrutinising
body might wish to take a different position from the Government.
It should not be impeded from doing so as a single body corporate.
It should rather be separated into two distinct legal entities. |
| Turning to the second part of my remit namely, the
issue of legislative scrutiny. In particular I refer you to areas
such as health and planning where the policy and law making in Wales
is different from England. It is elementary learning that the Assembly
has no power to introduce primary legislation into Parliament, yet
in areas such as health and planning the vast majority of the policy
and legal expertise require to prepare it and ensure its passage resides
in the Assembly. |
| The sponsor department here for introducing the bill
and taking it through Parliament is the Wales Office, but it has comparatively
few resources. Quite simply, they are not equipped to perform their
task alone. Therefore, the Wales Office and the Assembly necessarily
work in close harmony and they have done so pursuant to an agreement
entered into by virtue of a section 41 of the Government
of Wales Act. |
| In practice then, the effect is that the Assembly
policy officials and lawyers by agreement exercise the functions of
the Wales Office in advising ministers, drawing up the policy, instructing
counsel, managing the pre-legislative scrutiny processes and supporting
the Wales Office ministers in securing the passage of the bill. In
my view, this is powerful evidence that the Assembly is coming of
age. |
| Turning to the issue of pre-legislative consultation
and scrutiny, I would like to identify by way of illustration
the process leading to the enactment of the Health (Wales) Bill.
The background was this: permission was given to publish the draft
bill in 2001 and 2002. Assembly lawyers instructed directly Parliamentary
Counsel and a draft bill was published for consultation in May 2002.
A total of 307 organisations and individuals were consulted.
There was also a special session of the Assembly's Health and
Social Services Committee to debate the draft bill and recommend changes
to it. Members of Parliament, working on the Welsh Affairs Select
Committee, attended this session of the Assembly Committee. There
was then a debate in plenary session in the Assembly at which a resolution
was passed endorsing the Bill. At the same time pre-legislative scrutiny
by the organs of Westminster also began. The Bill was scrutinised
first by the Welsh Affairs Select Committee. Some of their members
had already of course attended the sitting of the Assembly Committee
and there were also a number of sessions in Cardiff. During these
sessions the Welsh Affairs Select Committee took evidence both from
the Assembly and Wales Office ministers responsible for the Bill.
|
| Finally, the Welsh Affairs Select Committee published
the results of its scrutiny and its recommendations in July of
last year. |
| The scrutiny undertaken was thorough, and together
with the responses provided by the wider public consultation the Assembly
agreed to incorporate many of the suggestions. |
| The reports of the Welsh Affairs Select Committee
were considered by the Welsh Grand Committee of the House of Commons,
which took evidence again from both the Wales Office and the Assembly
Ministers responsible for the bill. |
| The final part of Parliamentary pre-legislative scrutiny
-- |
| Ted Rowlands |
| They took evidence? |
| Professor Iwan Davies |
| That is my understanding. |
| There was then further Parliamentary pre-legislative
scrutiny and an informal briefing session for peers. My point is this,
that the special procedure could be described as protracted in terms
of time, and my view is that it is necessary for Parliament and the
National Assembly to develop machinery for the joint scrutiny of primary
legislation, especially where the legislation proposes policies, developed
by the Assembly Government and the National Assembly Subject Committees.
|
| I refer here to the recommendations made by the
Welsh Affairs Committee in their fourth report for the session 2002
to 2003. |
| The need for what the Welsh Affairs Committee Report
described as a joined up approach to legislation affecting Wales can
be illustrated by the ill-informed proceedings of the House of Commons
Standing Committee into the Welsh clauses of the Planning and Compensation
Bill. |
| The third part of my remit is to refer you to the
appropriate test or scheme to delineate the devolution of functions.
I would simply say that the current position of course is that
there is no overall principle to govern what is and what is not a devolved
matter. You will recall that at the seminar there was much debate
as to whether it would be possible to identify and state an overarching
principle to guide the distribution of powers between Westminster
and Cardiff. It was suggested, if you recall, that the determining
test for devolution function could be whether the function involved
the provision of a public service to the people of Wales. |
| The discussion which followed demonstrated that it
was not easy to draw this line. For example, if this approach was
adopted, the question would still be at large as to whether Parliament
in Westminster should determine in each particular Act of Parliament
whether uniformity between Wales and England was desirable. |
| In my view, a more satisfactory and perhaps more
conventional approach would be for Wales to adopt the Scottish model.
|
| Under the Scotland Act 1998 powers are devolved to
the Scottish Parliament on a reserved basis and unless referred
to in the list of reserved matters power is devolved. I accept,
of course, that the apparent simplicity of the scheme has nonetheless
resulted in 6 fields of general reservation and 11 areas of specific
reservations. I accept that it is a matter of debate if
Wales was to follow the Scottish model as to what the precise boundaries
should be and whether or not the exact boundaries as those adopted
in Scotland should apply. |
| It is worth noting, however, that the development
of devolution in Scotland has also witnessed Westminster continuing
to legislate for Scotland at the request of the Scottish Parliament
in situations where it is acknowledged that there should be a uniform
UK approach. This has freed up legislative time in Scotland to pass
important bills which formerly at least may have been squeezed out
because of lack of Parliamentary time in Westminster. |
| The Scottish experience would suggest that in the
case of Wales, with the Assembly exercising primary legislative powers,
Westminster could continue to legislate for Wales where this was logical
to do so thereby freeing up the National Assembly to focus on matters
specific to Wales in terms of needs and circumstances. |
| It may be possible to conceive a system of the
National Assembly operating as a parallel legislature with Westminster
over the devolved fields. For example, procedures could be developed
where Westminster could by resolution require a bill introduced
into the Assembly to be called up to Westminster and form part of
the legislative programme of the UK Government. Doubtless if this
approach is adopted it will be necessary to develop further conventions
so as to secure an appropriate distribution of legislative effort.
|
| Lord Richard |
| I think actually I have changed my mind.
I think perhaps we ought to have 10 minutes, quarter of an hour
sessions if that is all right. |
| That was very interesting indeed. The conclusion you
come to is the tidiness of the Scottish system, and the difficulty
is if you follow that route is how do you get the Scottish system
actually adopted? That obviously is political but do not underestimate
the scale of the political problem. |
| Two or three points I have and I am sure other
members of the committee will have their own. On your first point,
on the corporate personality, in fact, subject to I would have
thought something having to be done about the point, because it seems
to me to be illogical and does not conform with reality and is very
confusing. What would you actually do? |
| Professor Iwan Davies |
| Quite simply, I think it is an issue really of
recognising de jure what is happening de facto. The current situation
compromises, as I mentioned, the position of the Assembly as
legislature and the Government as executive in terms of accepting
different kinds of legal advice. This is a matter of principle. |
| Lord Richard |
| So it would need primary legislation to sort it out?
|
| Professor Iwan Davies |
| That is correct. |
| Lord Richard |
| It would? |
| Professor Iwan Davies |
| Yes. |
| Lord Richard |
| In your view, it would demand primary legislation
for the corporate body. |
| Professor Iwan Davies |
| In law - yes. |
| Lord Richard |
| One can go quite a long way without going to
primary legislation. |
| Professor Iwan Davies |
| This has been the experience of the Assembly. |
| Lord Richard |
| As I understand it, the Assembly has already
established access to independent legal advice, so I think it
is beginning for the Conservative members having access to independent
legal advice. |
| Professor Iwan Davies |
| That is correct. That is the point about devolving
out of its corporate shell. However, in view of the remit of this
Commission there is now an opportunity to regularise the position
in Law. |
| Lord Richard |
| I see that, but is that more than a desire
for legal tidiness? What happens if they do not do it? They just go
on and on. |
| Professor Iwan Davies |
| And making it work. |
| Lord Richard |
| Yes, and making it work. Do you think there is a time
when they will not make it work? |
| Professor Iwan Davies |
| There is always that risk, is there not? |
| Lord Richard |
| I am not quite sure how. How are you going to provoke
a situation where you could have a group of 70 members
saying, "Look, we are not part of the corporate body any more"?
I do not see the practicality, the practical need for actually
having to regularise the primary legislation because even on this
it is relatively slow. |
| Tom Jones |
| If the legal advice is at odds, if you receive advice
on behalf of the Assembly, or the Welsh Assembly Government, and the
response is at odds with the legal advice, one will have to implement
advice and the Government -- that is when it needs to be addressed.
Could then somebody challenge the implementation of the different
forms of advice because that is when the practice is impractical?
|
| Professor Iwan Davies |
| The issue of challenge is problematical. |
| Lord Richard |
| How would you challenge it? Who would challenge it
and how would you challenge it? Judicial review or something? |
| Professor Iwan Davies |
| Well, it would of course depend upon the nature of
the issue in question. |
| Ted Rowlands |
| It occurred over teachers' performance pay when the
committee actually took legal advice, did it not? |
| Nicholas Cooke QC |
| That is the origin of it. |
| Ted Rowlands |
| There was not a problem of taking advice, was
there? |
| Nicholas Cooke QC |
| I think it was disputed as to whether it was
proper at first, but it evolved. It was a "making it work point".
Something was identified as essential for which no provision had been
made. |
| Dr Laura McAllister |
| Is it not one of the tensions as well, the guarantee
of access to advice and resources generally, because if we are operating
on a de facto basis rather than a de juro basis there is
no absolute guarantee that the level of information, not just on the
legal front, on the research front, to subject committees is there.
Is that another reason for the de facto situation? It is granted
access to the kind of information that AMs, back bench AMs actually
require. |
| Professor Iwan Davies |
| I agree. It would regularise matters from the
current ad hoc arrangements. |
| Peter Price |
| Strikes me as being the way we use the word "challenge"
is actually the factual evidence which would then become part of a challenge
raised which might go to the scope of what evidence was taken into
account in reaching a quasi-judicial decision. For example, in
the field of planning if that decision is the corporate body meaning
the members of the Assembly as well as the Government then you take
account of various statements made by members of the Assembly who
participated in some way in that decision. |
| The factual elements therefore become much more difficult
from the point of view of the corporate body. It would be far more
exposed and at the same time the members of the Assembly would be
constrained not to express views which in a democracy they ought
to have more freedom to express. That is the nature, I would
have thought, of the problem of challenge, is it not? |
| Lord Richard |
| Where are you going to have the challenge? |
| Nicholas Cooke QC |
| The corporate body structure does not sit well with
the way in which the planning system has been found to be human rights
compliant on an England and Wales basis. I am not aware of anybody
seeking to challenge decisions on that basis, but if you have a development
promoted by one part of the Assembly and being decided about by another,
that has been able to be worked around in the English system. If somebody
was sufficiently au fait with the corporate structure and was
looking at this and they thought there was a practical advantage
in challenging it, and so on, this is an area where you could have
someone saying, "But it is all the same corporate body in reality"
and the glass wall is meaningless because actually it is the same
people. |
| Lord Richard |
| I see that. That is the point I was just
about to make. This is a possibility. Are there any serious legal
difficulties that we have? |
| Nicholas Cooke QC |
| It was real in England and Wales. Certainly it did
give rise to an actual challenge and compliance was only found on
the basis that the separation of functions was practically assured.
There is actually the possibility of review through the courts and
the Inspector is independent of Government and a decision can be reviewed.
That is what saves it, but there is a certain worry I think
to a lawyer about the idea of having the one limb of corporate body
deciding on the other limb of corporate body. It does require a bit
of mental gymnastics to see this as a meaningful separation of powers.
|
| Lord Richard |
| Anything else about corporate personalities? |
| Can we go to scrutiny now. The Wales Health--
I think that must have been scrutinised. I cannot think
of anything so scrutinised in Parliament. Somebody said to me it had
been grossly over-scrutinised, because it was not a massive bill.
You gave a very graphic account of the somewhat sort of tortuous
way in which that consultation took place and ended up by saying that
they have to develop somehow a system within the present settlement,
Westminster and Cardiff in effect doing joint things. What sort of
things do you think they can do? |
| Professor Iwan Davies |
| I accept your point completely as seen for example
with the health bill. Effectively it is the joint taking of evidence
and the whole issue of the Members of Parliament attending Assembly
debates and being part of the entire scrutiny process. These are points,
of course, which the Welsh Affairs Committee have already made. |
| It is necessary for Parliament and the Assembly to
develop machinery for the joint scrutiny of primary legislation especially
where the legislation proposes policies developed by the Assembly
Government and the Assembly’s subject committees. |
| Lord Richard |
| But you have still got the problem, have you not,
of evidence having to be at the Assembly level, then at the Welsh
Affairs Committee level and then at the Welsh Standing Committee level
and then presumably it goes back to the Assembly to get the final
chop and then it goes through the legislative process. You still face
all that. |
| Professor Iwan Davies |
| Yes. It is a matter of political reality. |
| Ted Rowlands |
| Could we clarify the different strands of legislation.
The Wales only bill, like the health bill, is one category. Then you
have other bills which would be a sort of Welsh equivalent to
the Scottish bills where there are minor things, the Sewel motion
type of bills and then you have this middle, hybrid, in which the
planning bill is, I think, you would not have, for example, a planning
bill of that kind done by a Sewel motion in Scotland. They have
not done that type of thing, where there are substantive pieces of
legislation, part of which is offering a different solution to
that which has been offered for England. |
| But then there is the common body of common legislation
in the rest of the bill and I just wondered whether would it
not be better anyway to clarify as it were these three different strands
of legislation that have emerged: one which is minimally different,
but nevertheless the Assembly might have an interest in it because
it could lead to a financial consequence, or a consequence of
rights. The second category which is your planning bill type of legislation,
which has a mixture of something which is in common: compensation,
land issues, are in common where there is a different procedure
laid done and, thirdly, your Wales only bills. Would you envisage
different procedures to deal with these three different types of bills?
When you talk about parallel legislative process, would it be the
same parallel legislative process for all types of bills, England
and Wales bills, or would you recommend a different type of procedure?
|
| Professor Iwan Davies |
| It would vary according to the nature of the devolution
settlement. Of course, if the matter was devolved to the Assembly
Government, it seems wholly appropriate that the Assembly legislature
should deal with that matter. The issue of parallel -- |
| Ted Rowlands |
| Planning has been devolved but the legislation that
has gone with it, the legislation does not actually, because there
are chunks of everything attached to a planning bill. It is not
just a planning bill; it is often a planning and compensation
bill. Everything I have seen tends to be a bit of a mixture
anyway. So, I am sorry, I do not think it does answer my query
that in fact the bulk of the function has been transferred, but the
kind of legislation that arises in an England and Wales setting is
very different from Scotland. It will tend to have a hybrid type
of legislative bill of the kind of planning it represents. The Assembly
does have primary legislative powers to deal with all the bills. There
will be a second category of the bills which will be England
and Wales bills, not Sewel bills, but a mixture, the kind we
have in planning, and education too and a Learning Skills bill, for
example, and then the sort of one where England and Wales goes with
minimal Welsh differences. |
| Professor Iwan Davies |
| I think you would have to have different procedures,
depending upon which category the bill came into. Where there are
matters common to England and Wales the Scottish experience is instructive.
The Scottish Parliament looks to Westminster to legislate where there
are good policy reasons to do so in respect of common issues. |
| Ted Rowlands |
| I am sorry to interrupt you. I think my reading --
I have not scanned every single page, but we did have a good
example, and I do not think there are many Scottish Sewel bills
of the kind like the planning bill where you have a substantial
different part and a substantial common part. Many of them are
quite small and might need a modest amendment, and I think
does it not reflect the difference between the English and Wales relationship
and the Scottish relationship, or historically and legally? |
| Professor Iwan Davies |
| I think that is fundamentally the case, yes.
In large measure of course many of the issues which pertain to the
England and Wales relationship do not exist in Scotland. I do
not think that anyone is seriously contemplating the idea that, for
example, an element of private law, contract, tort, or family law
for that matter, should be devolved to Wales. |
| Ted Rowlands |
| So that is -- I just want to get the one
basis for the commission from you, that in fact there is a substantive
difference between the England and Wales relationship and the Scottish
and English settlement and perhaps a devolution should --
|
| Professor Iwan Davies |
| Historically there is a difference for example
in the legal tradition. |
| Vivienne Sugar |
| Can you amplify that by explaining the differences
in terms of what would still appropriately be reserved and what could
be transferred and talk just about property law and think of other
things where it is the same really, because you said "or just
adopt the Scottish law", and I wrote down "with the
same reserve powers, Sewel, et cetera, et cetera",
but it clearly is not that. Would you like to give an opinion on what
could be and what should not be? |
| Professor Iwan Davies |
| Private law in England and Wales should broadly reflect
the current position. The trend nowadays is towards uniformity in
law. For example, it would be absurd to have a different Sale
of Goods Act in Wales as compared to England. Similarly, in the private
law field there are so many issues dominated by European matters --
consumer credit would be one -- where again it would be naive
to assume that you could have a different regime in Wales as
distinct from England. In fact, it would be positively anomalous so
to do. |
| Similarly, in family law matters, one would not consider,
for example, that there should be a different adoption regime
in Wales as distinct from England. |
| Vivienne Sugar |
| We had evidence just before lunch from some equality
organisations who actually precisely wanted different powers for Wales
than existed in England, but this probably needs some working out,
does it not, to illustrate the point, and I wonder whether we
could ask you if you would be prepared to do that? |
| Ted Rowlands |
| Police powers reform would be on an England and Wales
basis. Agreed, or not? |
| Nicholas Cooke QC |
| Yes, it would, but of course, in almost any area you
pick there would be some items of secondary legislation which, because
of the nature of the present split, the Assembly might interest itself
in. Then you would move into the operation of the system. The problem
is that in all areas of governmental activity now there is primary
legislation, secondary legislation, operative policy and procedural
matters. This is why there is so much difficulty in dividing up responsibility
between London and Cardiff. |
| Ted Rowlands |
| What would these other issues be in terms of procedures?
|
| Nicholas Cooke QC |
| Procedural matters, who should deal with the matters,
who should try it, what priority would be given in resource terms,
how long you might wait to have your leasehold dispute dealt with,
and so on, because that is that sort of issue -- |
| Ted Rowlands |
| That is not a legislative process issue. |
| Nicholas Cooke QC |
| No. Devolution by topic makes more sense than devolution
by tier of legislation. We talked earlier on a related point --
I almost intervened then -- planning: a good area
to devolve. Substantive law remains effectively with Westminster,
so for those less familiar with the system, the definition of development
is in the primary legislation, not a matter for the Assembly.
The use class order which defines a shop as A1 and distribution as
B8, and so on is a matter of secondary legislation, a matter
which the Assembly could interest itself in. We live in a world
where the Assembly could interest itself in whether changing from
a shop to a chip shop is development, but it could not interest
itself in the definition of what development is as a matter of
principle. |
| The public must find it rather difficult to understand
this, but that is the present state of affairs. It might be helpful
if the topic were known to be an Assembly matter, rather than this
rather Byzantine way of having to -- |
| Ted Rowlands |
| When you say "topic" you mean "field";
the word used is "field". |
| Nicholas Cooke QC |
| Field, sure. Which field would make more sense. Planning
from top to bottom might be an Assembly matter; with of course reservations,
development by the UK Government, and so on, defence matters and so
on and so forth. It makes more sense to devolve by field than the
rather arcane distinction of legislation tier. |
| Tom Jones |
| It is not just a question of uniformity of legislation.
If it is exactly the same in England and Wales, therefore let us have
an England and Wales bill. It is a matter of timing as well,
is it not? The administration in Whitehall might decide it is not
available or capable of doing it this year, so do it next year, so
things about the timetable and timetable issues as well as review
of national parks in England which took place some years ago and is
taking place in Wales this year; existing legislation, but the timing
has to be right. |
| Lord Richard |
| Perhaps we ought to move on. Thank you very much.
I enjoyed that. |
| Phillip Howell-Richardson |
| What I am going to address you on is the question
of the delivery of legal services, and the peculiar problems that
may exist in Wales and then look at some of the opportunities that
might be present, whether they can be organised by way of structure
or otherwise, to try and address them. |
| By way of general background, you may remember that
in fact the legal practitioners in Wales are few in number. There
are 3,485 solicitors. There are about 2,600 in private practice, and
386 law firms. The barristers are in excess of 400. So relative to
the rest of the UK there is a particular preponderance of legal
services in London and in Wales there is a relatively small profession.
The problem is that there are structural changes that are particularly
bearing in on the delivery of legal services in the communities of
Wales and access to justice, which is what the professions are there
to provide. |
| The problem arises in two ways. If we look at, first
of all, in terms of the rural and valleys services -- I do
that for no reason other than to draw the problems out for you --
In those areas, you often find an ageing population of practitioners
combined with under-investment and very severe economic forces at
work. Those economic forces may be as simple as the bank manager,
but they may also be the fact that solicitors did not get a Legal
Aid franchise, and they have not invested extensively in computers.
Training is a word that is for others and the markets around
them are facing increasing competition. |
| All lawyers know about the falling cross subsidy received
from conveyancing and they also know about the extensive legislative
changes which Mr Cooke will talk about further in a second.
So there is a picture there, particularly in the rural areas
where there is a very real possibility of rural legal deserts.
Why is that important? Because there are vast tracts of Wales which
are affected by this phenomenon. |
| Besides that, there is the delivery of legal services
in the valleys, an area of long-term deprivation and an area where
many or all of these issues are present and access to justice via
the professions, of which legal services are one, are absolutely essential
to maintain the community. In these areas the problems that I have
highlighted are particularly apposite because in the south east cluster
no more than 40 miles south you have a completely different phenomenon
taking place; namely, there is the big legal firms system where those
organisations are in fact looking at taking part in the southern economic
development and attracting legal services to Wales and are using UK
approaches in order to commoditise legal services. So side by side
in a relatively small area you have these vastly different demands
and issues in the delivery of justice and legal services. |
| So perhaps dealing with the first, which is the question
of the delivery of services in the communities, I would like
to highlight particular factors. The first is that there are several
separate agencies involved -- you will know better than I that
administration of justice is not a devolved function -- but what
we have tended to see is a fragmented approach, whereas the phenomena
I have described can be seen as a whole and ideally you would
like to treat the problem as a whole. The fragmented approach
has meant that the treatment and delivery of criminal services through
the Magistrates' Courts has been the subject of separate significant
reform and change on its own. It will be for Nicholas Cooke to describe
that in greater detail, but at the same time in civil terms we have
seen a withdrawal of local courts to civil justice centres on
grounds of an efficient thing to do. |
| It is, though, born out of decision makers in London
with little input, I suspect, from the rural and valley communities,
so the ability of the Assembly Government to assist their problems
is something that I place before you. In practice there may be
some piecemeal solutions that could break out. You may well be --
almost certainly will be -- aware of the initiative to create
legal and financial services as a specific area for the economic
growth of Wales -- but in this area of service delivery for the poorer
sections of the community, I wonder how far that will be able
to help. Whether there is any joint delivery of services in mid-Wales
by private finance initiatives, or led by the Assembly, I leave
to the future. But at the end of the day they have to deal with a very
fragmented structure on the ground. The police themselves are fragmented
in structure although they do report to the local community. The civil
courts may be online but they are elsewhere, and whether the users
have access to that is another thing, and the actual contribution
of the lawyer in the community is increasingly under pressure. |
| So there are several agencies at work in small communities
which do not have these particular phenomena in their sights to solve
or at least counteract. I see that as a continuing problem
and if unaddressed could well lead to legal deserts in significant
areas of North Wales, Mid Wales and even West Wales. It is not alarmist,
but it could happen. |
| Turning now to the other side which is the phenomenon
of the larger law firms looking to commoditise and extend legal services
outside Wales. Their training, heavy investment, and marketing, will
attract the best people from the universities in Wales into the Welsh
marketplace to provide specialist skills and developing a centre of
excellence in south east Wales is on their agenda. Here again fragmentation
exists for them as well. Whilst there is the Forum Initiative and
there is the working relationship with the universities -- their pursuits
may be easier in some ways because they are more commercial -- nevertheless,
a co-ordinated approach is still needed. |
| I have been descriptive. I apologise if
I have not brought solutions with me, but I do feel, especially
on the first area of delivery of services in the community of rural
Wales and the valleys, the present fragmented position is going to
lead to serious problems. |
| Lord Richard |
| What do you actually mean by fragmentation? |
| Phillip Howell-Richardson |
| It means that the civil justice court is in Swansea
and I am very far off in Mid Wales. I cannot afford to go there
and I may not be able to get to a computer, so I speak
on the phone or do not bother. It means that in certain areas of Wales
the law firms are not getting replacement skills to provide the community
advice and assistance on rights. |
| Now I hope that I am not painting too dramatic a picture
because, of course, we have access through online services, but in
the development of legal skills and the interpretation of the information
so that an individual can get an answer to "What does this mean?",
I think there is a real danger of gradual waning. |
| Lord Richard |
| What I am not clear about is how do you relate that
to the position of the Assembly? What do the Assembly do about it.
|
| Phillip Howell-Richardson |
| The Assembly may choose as part of its provision of
access to justice to provide a co-ordinated approach, such that
it coalesces or co-ordinates the provision of services. It may fund
on a temporary basis, rooms or access to services within small
communities, provide some finance in order to enable people to work
together across boundaries; say, for example law firms contribute
time, and the court would contribute people, for delivery of services
in the community. On a longer term basis the Assembly would concern
itself with how to provide these public services. We all know that
the Citizens Advice Bureau has been under enormous pressure with its
budgetary concerns but the Welsh perspective on the delivery of services
via that route inside Wales may need another look. |
| Peter Price |
| What you have described so far strikes me as probably
within existing primary powers, within the existing primary legislation,
but a question of transferring the implementing powers from London
to Wales. If that were to be done, back to the point about topic devolution,
what would be your definition of the topic that would need to be devolved
to cover what you are describing? |
| Nicholas Cooke QC |
| The administration and provision of civil and criminal
justice. The Assembly might be best placed to consider for example,
what number of trial centres, the use of non-permanent court houses
and so on. The Assembly might have a different view of bringing
legal services to Mid Wales or the valleys. There may be particular
issues which would not be prominent in an English setting. |
| Ted Rowlands |
| So the Lord Chancellor would not be able to close
the Pontlottyn court. |
| Nicholas Cooke QC |
| That closure may have been a good move. But that is
not the point, the Assembly ought to be able to close or not close
Chepstow, or wherever. |
| Phillip Howell-Richardson |
| So it is the delivery of the services in the community
and the complete approach to that -- I think I define it as delivery
of justice services in that community. |
| Peter Price |
| You have made a slight difference by adding --
perhaps more than a slight difference -- by adding the word
"delivery" on, and I rather suspect that we have now
got three topics that are more allied in what you are going to be
talking about, because at the end of the day we are looking at the
administration of justice as the overall topic and the extent to which
administration of justice can be devolved, it strikes me. Is that
fair? |
| Phillip Howell-Richardson |
| Yes, I think that is right. |
| Nicholas Cooke QC |
| Yes, and there is an overlap of functions anyway.
There would be an illogicality about devolving the administration
of the civil system but not the criminal system. There is an overlap
in function and operation. |
| Phillip Howell-Richardson |
| The two sit side by side. The economics of a law
firm in North Wales and the development of skills for the next generation
coming on is often born out of Magistrates' Court work traditionally,
and we have seen in Wales particularly the closure of many Magistrates'
Courts which have had a direct effect on the delivery of services
in the community. So I think it is the administration of justice.
|
| Peter Price |
| And one could add in the tribunal field that, although
there has in some cases been more scope for maintaining peripatetic
centres, nevertheless, there are pressures from London headquarters
to avoid just that kind of thing, exactly the same impact as you are
talking about in terms of criminal and civil justice centres in the
courts system. |
| Professor Iwan Davies |
| It is about the organisation of the courts and public
law systems in Wales. Wales is a distinct region. |
| Lord Richard |
| How is it, in this respect, how is it more distinctive
than another region in England, say the north east? Would there be
any major differences? |
| Phillip Howell-Richardson |
| Yes, I think there are major differences in this respect.
I think that within the Welsh dimension, the North Wales and
the South Wales group, there is this dramatic change, as I have
tried to bring out, between the bigger firms going after "international"
work and yet a very severe effect for the majority of the firms.
We are only talking of 386 firms, so well over 300 firms are affected
by the more severe developments that I am talking about. So in economic
terms of the health of this sector, whilst you can say that its contribution
to the overall economy of Wales is going up in some areas, in other
areas it is under very severe threat. I think, in economic terms,
as a long term matter, the clustering of the legal services around
the south east corner does have far wider implications for the community.
|
| Professor Iwan Davies |
| I think it is worth bearing in mind as well what
the total number of solicitors on the roll is for England and Wales.
It is about 70,000. |
| Lord Richard |
| Is it? |
| Phillip Howell-Richardson |
| I did make a note of that. |
| Lord Richard |
| About 10,000 at the bar. |
| Phillip Howell-Richardson |
| Yes. The total practitioners in 2002, the practising
figures in the UK, was 89,045. In actual private practice in the UK
in 2002 -- |
| Lord Richard |
| It includes Scotland? |
| Phillip Howell-Richardson |
| England and Wales only; it does not include Scotland.
70,000 in private practice, 70 in England and Wales, of which in Wales
the total is 3,400. |
| Professor Iwan Davies |
| 2,600 in private practice. |
| Lord Richard |
| So we were down on the figures. Really what you are
saying is it is an existing situation. |
| Phillip Howell-Richardson |
| Yes. |
| Ted Rowlands |
| Sorry to reduce you to the particular but it is the
only way I can understand some of these arguments. My reference
to Pontlottyn was that in fact I remember taking a deputation
to keep the Magistrates' Court open to the then Minister, Mr Geoffrey
Hoon, and he tried to present the case, not only that it was easy
to go from Pontlottyn but also that it was part of the general reform
of the whole of the radical Lord Chancellor's reform on the justice
system and therefore he saw this particular decision about the administration
of justice as part of a much bigger picture. If that is the case
are we asking for a total devolution of the Lord Chancellor's responsibilities
or can we actually divide the administration of justice from as it
were general justice policy and philosophy and so forth? |
| Phillip Howell-Richardson |
| I think you can divide the actual administration
of it from the policy involved in it. The decision to deliver services
in certain ways and certain priorities, certain times, certain groups,
within a relatively small number of people is certainly doable.
|
| Ted Rowlands |
| It does not flow from the justice system itself. |
| Nicholas Cooke QC |
| Historically, it did not. In fact this is a story
of centralisation. It was always a county matter, the county
decided where the courts would be, the assizes, petty sessions and
all the rest of it. It has been centralised slowly. I am sure there
are parallels for English regions, it is just there is a voice
for it here. If you think of the county of Lancashire, Barrow-in-Furness,
I suspect, is an inaccessible place. If you want legal services Manchester
is a very thriving legal centre, so there are certainly parallels,
but here there is a voice which has been set up to be responsive
to Welsh needs. |
| Lord Richard |
| I am still not sure what you are expecting the Assembly
to do. |
| Phillip Howell-Richardson |
| I think that a structure which has as its
task the delivery of legal services for Wales that is able to co-ordinate
all the agencies, or even have some given to it, and some of the powers
that it needs to effect that would be certainly an advance. At the
moment we have several institutions for the administration of justice,
wherever they may be based, doing it de facto, but they are still
not fully addressing the problems that I am trying to bring out. If
there was a unitary structure of some description that could
have as its task the delivery of these services, justice services,
I think that would be an improvement. |
| Lord Richard |
| Would you have to have primary legislation? |
| Phillip Howell-Richardson |
| I turn to my constitutional expert on the left.
|
| Professor Iwan Davies |
| My suspicion would be yes. |
| Lord Richard |
| Otherwise you would have a transfer -- |
| Professor Iwan Davies |
| Yes. |
| Peter Price |
| A lot of this depends where exactly you are drawing
this line, because in answer to Ted Rowland's question a moment
ago you were seeking to draw the line within the topic the administration
of justice and I think this afternoon it is going to be very
helpful if you could move in clarifying where that line needs to be
appropriately drawn, because if we are to make concrete recommendations
in the field of administration of justice we are going to have to
define that line. It may be that this question is premature. I pose
it as a problem which by the end of the afternoon I think
we ought to be able to see if we are making some progress at least
on it; not necessarily this second if that is not appropriate for
you. |
| Phillip Howell-Richardson |
| To address your concerns about primary legislation,
which I fully understand, there is an interim position which
you can develop de facto. There is no single institution at the moment.
There are several movers but no real institution whose main concern
is the delivery of justice. |
| Lord Richard |
| And you think you could develop this outside Government
structures? |
| Phillip Howell-Richardson |
| In an ideal world, but my fear is that we will not.
|
| Lord Richard |
| What sort of bodies are you thinking of? |
| Phillip Howell-Richardson |
| There is a precedent, for example, in economic
matters with the WDA. That was -- that had a particular
task to perform. |
| Ted Rowlands |
| Transfer the function, and if it was, presumably,
it would be the Assembly would not wish to have the function transferred
without the corresponding resource, so you would have to identify
the resource that is at the moment locked up in the Lord Chancellor's
Department for the administration of the county courts. Presumably,
is there a Welsh courts budget for the administration of the
courts? |
| Mr Justice Thomas |
| No. The way in which the courts budget works is essentially
as follows. The Lord Chancellor's Department has a block allocation
from the Treasury. It then divides it within the Lord Chancellor's
Department (to the extent the Treasury permits it) to civil justice
and family justice as one unit and criminal justice as another unit.
Then within the Lord Chancellor's Department there are allocations
made to the various circuits and administrative organisations including
the Wales and Chester circuit. To the extent the Lord Chancellor's
Department has the freedom to do so, it is the department of Government
which splits up the allocation form the Treasury; the funds then come
down into the various geographic regions, but subject to the ability
to move funds where one area needs more than another. That is in broad
terms how it works at the moment. |
| Ted Rowlands |
| How easy would it be to chop the Chester bit off?
|
| Mr Justice Thomas |
| That is a difficult question that maybe we can
come back to. |
| Nicholas Cooke QC |
| I did not see myself, as I think I said
last time, as being a great radical, but I think I have
to cast myself in the role for these purposes. Mr Hoon did not
stop at Pontlottyn, he closed Bargoed as well. There is no end to
his ambition! |
| These are the basic propositions. The increased devolution
of the criminal justice system would carry with it two benefits: the
first benefit being the benefit that it might function more effectively
in achieving its object because it might be more responsive to the
community in which it operates; the second benefit, being a benefit
to the perception of the Assembly, because the delivery of criminal
justice is such a conspicuous function of Government that there
would be a reduction in that level of apathy which presently
exists directed towards the importance of the Assembly itself. Those
are the two points. |
| Let me deal with the first point in a little
bit more detail. I will do so by reference to specific example which
is fresh in my mind. This morning I was concerned with representing
a murderer. He pleaded guilty. Someone from Pontlottyn, so just
down the road. A constituent of Mr Rowlands and I fear he
murdered another of your constituents. This terrible event was both
the product of and had results which are meat and drink to what politicians
interest themselves in. The causes of this crime lay in many things
but including the availability of drugs on the street, social deprivation
and so on. Politicians go into the world of politics with a view
to trying to do something to benefit -- to reduce the effects
of such problems. When the criminal system has processed the matter,
there are problems in the community, when will this person be released?
Can he be rehabilitated to Pontlottyn? What care can be provided for
the family of the deceased? What social measures should be taken:
children, old people, all the rest of those affected. |
| Why should it be in terms of policy - because
I am looking at the moment at the devolution of criminal justice policy -
that the criminal justice aspect of the matter will be divorced from
many other policy fields which are touched by it: the control of drugs
education, mental health issues, all the things that may be relevant.
|
| The other aspect is Mr Blunkett talks, as we
hear, as to what should tariffs be in relation to murderers and so
on and so forth. Is he -- and I will be at my most radical --
is he the best person to deal with that in the context of what is
going on in Pontlottyn. Or will he be most influenced by the sad loss
of life -- and I do not say that to be mealy-mouthed --
on a much greater scale than affects us happily here, in the
East End of London with its problem with gun crime, or Manchester,
or the other great cities of England. Would it be better if criminal
policy in Wales was more responsive to Welsh issues? |
| As a subtext I am talking to you today.
You have the benefit, if you want to ask me questions of asking questions,
of someone who has practised in this field for 25 years plus
in Wales. There is little prospect that my voice would be heard
by the criminal justice policy makers on a UK or England and
Wales basis. It is likely that if it was it would be drowned out by
other proper consultees because of the sheer size of the exercise.
There may be some benefit in the Assembly being able to receive information
from people who actually practise here, judicially, in terms of the
probation service, in terms of the police. Devolution in this area
might enable the formulation of more locally informed, locally responsive
policy. |
| So these are, I think, the points that I seek
to make in a nutshell. I can be relatively short because
I think they are clear. I am happy to answer questions about
those matters. |
| There is however another specific question though
that I ought to deal with. The balance between a Welsh focus
and consistency. Is there an objection to all of this because there
should be a consistent criminal justice system in England and
Wales? The first point is I am not arguing for a devolution of
the substantive criminal law. We are talking here about policy, but
that in some senses is a little bit of a red herring, because
you know across the whole of Europe, irrespective of the separations
of jurisdictions, the criminal law in a substantive sense is
pretty broadly consistent, and with the adoption of the European Convention
on Human Rights that is even more so. |
| Think, for example, of the extent to which --
a nice discrete example -- we could not make it more lawful to
hit your children in Wales than it is in England without being tested
against the European Convention of Human Rights and whether our system
adequately protects children against violence by their parents and
other adults. So essentially the scope for substantive differences
is not that great anyway and there is not much interest in that. Scotland
has its own legal system and you will find that almost everything
that is an infraction of the criminal law in England and Wales is
so in Scotland; there are very few differences. The differences are
substantially procedural or evidential; they are not by and large
differences in substantive law. |
| Consistency ought not to exist in an England and Wales
setting anyway to the detriment of all other considerations. We were
discussing it earlier. Sentencing policy: yes, there is an argument
that burglars should get the same in Liverpool as they get in Exeter.
Well, up to a point. Courts also need to be responsive to local
conditions and the need to deal with offences that are prevalent in
a particular area. Consistency cannot be the invariable rule; there
have to be other aspects in criminal justice policy. |
| I am in favour of a research based as opposed
to a knee-jerk response based approach to criminal policy. The
Assembly, it seems to me, could in a Welsh setting provide a very
helpful means for doing this at its most effective. It is likely to
be a dilution of what you can discover on a research based
approach, if you have to adopt a one size fits all approach across
an England and Wales setting. |
| So putting it powerfully, I hope, those I think are
the points. I do not think that "consistency" is an
answer to the force of the argument. That is what I would say.
|
| Lord Richard |
| Do you want to deal with the second point? It would
be of benefit to the Assembly. |
| Nicholas Cooke QC |
| I think you only have to - I remember
saying so on the last occasion - realise that there is a great
deal in the newspapers of politicians claiming that we must do this
to reduce the level of crime, and so on and so forth. It has continued
since I last had the opportunity to address you. It is exactly
the same and we have had an election, the Assembly election in the
interim. Figures for turnout were not as high as we would like in
an inclusive democracy. We have heard a great deal about tariffs
for murderers and so on. There are no changes in the points which
I would make in relation to that. |
| The public perception is that one of the foremost
considerations of politicians should be securing the safety of their
constituents from the effects of crime. Whilst the Assembly has no
role to play in this at all, then there is a gulf of perception as
to what it is about. Crime is not what all things are about in terms
of politics, but it is a very prominent feature and Mr Blunkett's
recent pronouncements are a further illustration of that. The
public perception in Wales is that the Assembly has nothing to do
with such matters. It will not remedy that appointing a minister
for social justice, if in fact, although the word "justice"
appears in the title the bit of justice I am talking about is outside
the remit. |
| Lord Richard |
| Suppose it was devolved to the Assembly, how would
it actually change the operation? |
| Nicholas Cooke QC |
| It is going to be gradual. By definition the change
-- I have already indicated I am research based -- I think
the first thing if it was devolved is you have to look at how resources
might be differently allocated. Research would be needed to decide
what criminal policies would emerge. |
| Probation, for example - now called a community
rehabilitation order -- raises different concerns and different
approaches, different management of resources in rural west Wales
to those in a conurbation. One could say, yes, but surely Cardiff
is similar to Wolverhampton and I would agree with that but the
Assembly and its allocation of resources, numbers of probation officers,
how this should work could have a different input. Likewise with
other non-custodial matters, liaison with mental health services,
and so on and so forth. |
| There is wide scope, and I am not suggesting I have
investigated fully. All this ought properly to be the business of
Welsh politicians in a Welsh setting informed by their own constituencies
and Welsh expertise and experience. |
| Lord Richard |
| The police will have to go with it. |
| Nicholas Cooke QC |
| Yes. I have firmed up on that since the last
occasion and the reason for that is that my claim that the chief benefit
of this is, to use the awful cliché, a more joined-up approach.
Therefore, of course you want the police to go with it. At the moment
though we have a world where Social Services, health matters are not
joined up with police matters. I think the new minister of social
justice point rather flags it up. In the Alway and Ringland estates
in Newport, with which people will be familiar, there is social deprivation,
and related crime. There should be a co-ordinated response for
dealing with that. The criminal justice system has its part to play
as does policing. What is needed however is a co-ordinated policy
of social intervention under a single coherent direction. The split
between Cardiff powers and London powers should not hinder this. |
| Ted Rowlands |
| Driving offences, would they be different offences,
or driving at different speeds? |
| Nicholas Cooke QC |
| I can see no reason why policy in relation to
those matters should not be devolved. In fact they are a good
example of where there is already a problem, because certain
highway functions are devolved. I would have thought there may
well be Welsh responses and different views about what the problems
are and where the resources might be devoted. At the top end of the
scale in relation to driving offences one is concerned with driving
with excess alcohol. That does not exist in a vacuum either.
It is related to transport policies. The availability of transport
in rural areas of Wales after certain hours is related to the temptation
to drink and drive. |
| Ted Rowlands |
| You have a variation in, for example, across
the bridge you would receive such and such a tariff for driving
and alcohol offences and across in rural Powys it would be different.
|
| Nicholas Cooke QC |
| You do now. The reality is there is discretion in
sentencing and that already exists. My point would be that there ought
to be a research based approach to that and the Assembly would
be well placed to introduce it to see what the effects are, rather
than the present somewhat give it your best guess that we have. |
| Peter Price |
| I have a sense that we are crossing a line
here between the Statute and the way that it is implemented and that
if we just try and clarify this: are you suggesting that the
power to fix penalties in criminal statutes should be a devolved function?
|
| Nicholas Cooke QC |
| No. |
| Peter Price |
| So in this case issues about the guidance that comes
in the case of Magistrates' Courts and, as I understand it, largely
from the Magistrates Association and the way that they operate and
in respect of the courts by way of the Lord Chief Justice's directions
and other things of that sort. |
| Nicholas Cooke QC |
| And now the new sentencing boards and the consultation
process that goes with that, which is set up under the aegis of the
Home Office and designed to be more inclusive, to listen to the public
more. There have been reports published on such matters. They of course
proceed on an England and Wales basis and are designed to lead to
a more informed approach to sentencing in criminal matters, but there
is no Welsh dimension to that and the proposition is that there should
be. |
| Peter Price |
| So you would suggest in terms of structures that there
should be a sentencing board in relation to Wales making recommendations,
or -- |
| Nicholas Cooke QC |
| I think I should develop this point. Yes,
something along those lines. |
| In many ways one would be attracted to a greater choice
of solutions as part of tackling questions of social deprivation with
wider sentencing options, but that may go beyond what I have
I looked at. There are questions of approach and the devotion
of resources. Also the youth justice policies which I say cry
out for greater knowledge and more co-ordination. The present system
is fractured there is no liaison mechanism which is sufficiently effective.
Youth justice policy and education policy need to be looked at together,
not by separate governments. |
| Peter Price |
| In the general criminal justice area then, would I have
understood correctly, if I pick out four things that I have
understood which you are talking about, transferring backwards, the
first would be the administration of criminal courts in the sense
that where courts are located and how they are resourced and things
of that sort. |
| The second would be in terms of guidelines, normal
guidelines in criminal sentencing; machinery that produces some of
those guidelines should be devolved. |
| The third would be the policing and the fourth would
be the group of organisations such as the probation service where
they interact directly with people who go into the criminal justice
system and are in some way treated, for want of a better word,
by that system. |
| Now that last one, where would that take us in relation
to prisons? Presumably, it would not devolve prisons and have I summarised
the main areas? |
| Nicholas Cooke QC |
| You have summarised them very accurately and I am
grateful for that. In relation to the courts -- I will deal
with the prisons in a moment, but before I forget it, the
whole approach to what a court should be like is something that
can be better tailored to a Welsh setting than it presently is.
There can be a very high capital investment in building a new
court centre which will not get the level of use that would justify
that capital investment and there have been examples of that perhaps.
I can say these things; others cannot. There are new courts in
Brecon and Pontypool that are not used particularly in terms of court
days, sitting days, as much as one might hope for. |
| In a Welsh setting there might be much more to
be said for, you mentioned Carmarthen, the industrial tribunal used
to sit in the Ivybush Hotel in Carmarthen. The Crown Court in Carmarthen
is a rather antiquated building, unsuitable for modern circumstances.
Someone has to take a decision about how one deals with that.
An initiative using non-permanent courthouses might be very useful.
Bringing the criminal system to communities has its own benefit. The
fact that it actually sits there -- I do not mean in terrorem
like the old Assize, but a feeling that it is part of our system,
not that it takes place in Cardiff and the man comes from London to
deal with it. It is a benefit for social cohesion. As for the
devolution of the prison service, I am not sure about that. I can
see that there might be reasons why economies of scale are against
the devolution of the administration. On the other hand, it is, again,
one of the features of Government. It is perhaps not as important
as the administration of the courts system. |
| Lord Richard |
| Thank you very much. |
| Mr Justice Thomas |
| What I would like to deal with are the basic
options available for a courts and tribunal system serving Wales.
I think there are probably four options: |
| The first would be to leave matters as they stand.
|
| The second would be to make modest adaptations to
the current system; for example, more offices of say the Court of
Appeal Criminal Division or the Administrative Court in Wales and
maybe more local administration. |
| The third would be to alter the structure fundamentally
by creating a separate division of the High Court for Wales with
a consequential effect downwards. That would mean the effective
assignment of a number of High Court judges to Wales, either
on a full or part time basis. |
| The fourth, and the most radical of all, would be
the creation of a system as in Northern Ireland with effectively
an entirely separate judiciary at High Court and Circuit Judge level
with an appeal either to a Court of Appeal separately contained
within Wales or an appeal to a combined court of England and
Wales, or simply an appeal to the Supreme Court of the United Kingdom
- the House of Lords. |
| Those I think are four options. |
| How do you evaluate what you do? I think there
are five factors that one needs to take into account. |
| The first, if I may refer to it, is what is called
the importance of an institution to a nation and the collateral
benefits that can give. I think there is no doubt that the creation
within the current system of, for example, the Mercantile and Administrative
Courts in Wales, together with regular sittings of the Court of Appeal
Civil Division have given some institutional benefits; they have increased
the focus on Cardiff as a legal centre. How much further one
should go is really a political decision. |
| The second -- and probably this is the most important
factor -- is the degree of separation. I think this must
depend upon the degree of difference that emerges in the law or in
social conditions. If there is very little difference between the
law of England and the law of Wales, it is impossible to see really
any possible justification for separating out, certainly at the level
of the High Court or above, any court structure. For example, if there
was to be a wide degree of difference in the law, based on different
primary legislative powers then you might consider a more radical
option, such as a separate division of the High Court, or a complete
separation as in Northern Ireland. The evaluation of that factor,
again, is a political decision. |
| The third factor comprises economic considerations.
These are, I think, broad matters of which Philip Howell-Richardson
and Nick Cooke have spoken. For example, if you were to create a separate
system on the Northern Ireland model, would you affect the ability
of legal practices to practise across England and Wales? That might
be an economic disaster. I do not think that it would impair
the ability to practice across England and Wales, but that would be
a consideration you would have to take into account. You would
also want to take into account the ability to strengthen the profession
in Wales. If you can create a career structure that terminates
in Wales, does that strengthen the professions? It is a question
you have to ask yourselves. Another, and again it is a factor
mentioned by Philip Howell-Richardson, is the ability to help
local communities. |
| The fourth factor is cost. I do not think this
is something one could ever ignore. The way in which the justice system
is financed is broadly as follows. The criminal courts are paid for
out of the general Treasury allocation to criminal justice. Civil
justice is dealt with quite differently; it is meant to be self-financing
and, again, that is something that would have to be looked at. Then
the other aspect of the cost, but this may not be a serious one,
is the cost of a separate administration. One cannot put a precise
figure on it. Then there is the element of cost to which I should
return in a moment when considering the position of North Wales.
|
| The fifth factor you would have to look at is the
extent of the devolution of functions to the Assembly; this is probably
the most complicated as there are various ways in which that can be
accommodated. Can I try and illustrate the complexity it in three
different ways? |
| At the moment the way in which the Welsh language
is used in the law is entirely a matter reserved to the Lord
Chancellor's Department by statute. Of course, the Assembly has a very
great interest in the use of the Welsh language in the law; for example
it legislates in Welsh; therefore, there is a common interest
in making certain that there are the facilities in the courts to deal
with what the Assembly passes by way of legislation. Now that has
been dealt with within the existing system by creating a separate
body that deals with it called the Lord Chancellor's Standing Committee
on the Welsh language. This has managed to bring together the interests
of the Assembly and the various other bodies within Wales to deal
with matters such as standardisation of terminology, training and
the seamless use of Welsh before tribunals, courts and in the processes
of the law before you get to court. That is an example of a structure
that has been put in place for dealing with a power that is entirely
reserved to London, but where the Assembly has a vital interest. That
sees to work quite well. |
| May I take as the second example another body which
is actually in place - the Advisory Committee on Criminal Justice
to the National Assembly. Although no functions in relation to criminal
justice have been specifically transferred to the National Assembly,
nonetheless, when one thinks about it, the Assembly at the moment
has powers that vitally touch on the operation of criminal justice
in its broader sense; for example, the financing of closed circuit
television in town centres or rural communities and planning requirements
for such facilities which are within the control of the Assembly or
local authorities, community safety, mental health and the funding
of the treatment of drug addicts. Although the functions I have enumerated
are not direct aspects of criminal justice, they bear closely upon
it. The Advisory Committee on Criminal Justice was put into place
as an interim measure to try and pull together the approach of the
judiciary, the approach of bodies such as the prison service and the
probation service and the Assembly and the administration of the Court
Service. The objective was to make certain that there was a co-ordinated
policy, because there is a complete lacuna in the current structure.
That is an example of a structure that can be put in place --
it maybe needs formalising more than it is at the moment -- which
deals with what one would look at as an obvious area where there were,
when you thought about it, an overlap of functions between the Assembly
and Westminster. |
| May I take as the third example-- and this is
looking to possible changes – a hypothetical example; Assume
a devolution of power over the police, but no more -- I just
take this by way of example without saying whether there should or
should not be; you would have then transferred a vital aspect
of criminal justice to the Assembly, but have left in place at Westminster
other aspects of it. If that was to happen, then it is crucial that
the structure of any devolution arrangements put in place on a formal
basis encompass bringing together the function which is controlled
by the Assembly with the functions that were left with Westminster.
|
| Therefore, this fifth factor requires you to evaluate
how what is devolved can be accommodated with in what structure. Even
if you do not make any alteration to the way in which the courts are
organised, you may want to put in place structures, preferably built
into legislation or delegated legislation, that recognise, for example,
the functions of the Assembly in relation to the operation of criminal
justice. It seems to me this is an important factor that has to be
borne in mind. Certainly the Lord Chancellor's Department both as
regards the Welsh Language Standing Committee and the Advisory Committee
on Criminal Justice has been very helpful in supporting such structures.
Such structures are a matter to which, in my view, really very serious
attention has to be given. |
| Those are, in my view, the five factors that determine
where you draw the line on the four options I have set out. |
| But I think that there are two other points I would
like to make. |
| One is to deal with the position of Chester, because
you asked me about this. Now this is a problem that has existed
for many centuries and it is a very, very difficult problem.
First, because of the way in which the conquest of Wales evolved,
Chester became the centre for justice in North Wales from the time
the Edwardian Conquest; although there were developed in North Wales
the Assize towns, no legal centre effectively has ever grown up in
North Wales. There is no equivalent of Swansea or Cardiff with a strong
locally based profession or strong Bar; they are all based in Chester.
There is therefore a big lacuna in North Wales. Secondly, there is
the obvious geographic difficulty of transferring judges from South Wales
to go to North Wales to deal with the ebb and flow of work, and there
is I think the question also in North Wales of perception. They
have traditionally looked to Chester to provide a centre for
their legal services and there is, I think, a feeling in
North Wales as to whether this can be done as well from Cardiff? |
| It is important to bear in mind that Chester has a very
strong Bar that contains a lot of Welsh speaking barristers.
I am not certain statistically whether there are not more in
Chester than there are in Cardiff, but there are certainly a very
large number of them. If you are to separate Chester off, then one
would need to make provision in the North for the provision of services
that are now dealt with conjunctly with Chester and also probably
providing proper court facilities. |
| The position of Chester is an extremely complicated
one. It has gone on for a very long time and there is no easy
answer, in my view, to the problem. It has exercised people for a very,
very long time. One sees, on the one hand, the neatness of a solution
that would leave Wales entirely as one separate area; but there are
these very practical difficulties which I have raised. It is
giving people a lot of heartache as to what to do in the current
consideration of the boundaries of the criminal justice and civil
justice systems. What decision will be made will ultimately, as in
all these things, be a political one, but it is a very difficult
one. |
| That is the position of Chester. |
| The last point I wanted to make was the question of
what do you do? To my mind the decision ultimately of what is transferred
and how it is transferred, whether the Parliament of Westminster gives
the Assembly primary legislative powers or gives it a greatly
increased amount of secondary legislative powers, must affect what
you do to the legal system in these different ways. When those decisions
in principle are made -- and I think a decision in
principle made as to what form, if any, you wish to alter the existing
structure -- the detailed design can easily take place within
a system, but the decisions as to what to do are, in my view,
essentially political decisions. All I have tried to provide
you with is possible ranges of solutions to difficult problems. Although
I can try to help you further, I cannot tell you what the
answer is. |
| Lord Richard |
| Perhaps you can help us in a guided sort of way.
|
| I am interested in the second of your options which
was to make modest adaptation. I wonder if you can spell that
out. |
| Mr Justice Thomas |
| I think what has happened since devolution is
that the Court of Appeal Civil Division now sits twice a year
in Wales, or three times a year, depending on the demand, but
it is regular. The Administrative Court sits in Cardiff, but there
is, for example, no office on any significant scale of either court
here in Cardiff. The view could be taken that it would be possible
more easily to identify Welsh cases if there was an office in Cardiff
that could handle and deal with things that were Welsh. That would be
one of the modest changes-- because it is not easy at the moment to
identify which cases should be tried here. |
| Lord Richard |
| How does it do it now? |
| Mr Justice Thomas |
| In the criminal justice system, it is much easier
to do so, because if a case originates from South Wales it is
obviously South Wales. It is slightly more difficult in the North
because of the interchange of work between North Wales and Chester.
In the Administrative Court it is more haphazard because it is not
always easy to identify whether one or other of the parties is Welsh,
and in the ordinary Queen's Bench Division it is actually quite difficult
to do so. Changes could be made to help identify Welsh work; such
changes are matters that could easily be achieved, if a decision is
made, within the existing structure without any need for primary legislation
on it. These are basically administrative improvements that would
strengthen the position of Cardiff and provide what would be perceived
to be a better service for litigants. |
| Lord Richard |
| How much work has the Court of Appeal got? |
| Mr Justice Thomas |
| On the civil side it normally sits about six days
a year. The Criminal Division at the moment, on figures that
were produced by Mr Justice Roderick Evans, does not sit
very much here. I am not exactly certain why that is, but one of the
difficulties is that it is quite important to bring criminal appeals
on as quickly as possible and therefore working in an administrative
structure that can allow more appeals to take place in Wales is probably
more complicated. No one has actually got round to working out how
it is done, but these are changes that do not require any primary
or other legislation; these are administrative matters which could
be carried through now. |
| Lord Richard |
| But the Administrative Court, has that got work now?
Last time we met there was not any work there. |
| Mr Justice Thomas |
| The work fluctuates. |
| Nicholas Cooke QC |
| It does fluctuate. It remains the case that --
and I can only do it by example and the evidence necessarily
is anecdotal -- there is no doubt that there is a resistance,
professional resistance, to making use of the Administrative Court
in Cardiff. By way of illustration, the Mental Health Review Tribunal
is the subject of judicial review applications. It is a separate
Welsh institution, the Mental Health Tribunal for Wales. There was
a training day recently and the Treasury solicitor came down
and was talking to us on the record. It was clear that there was ignorance
of the power to have judicial review applications heard in Cardiff
It was considered that expertise in judicial review of health matters
is entirely London based. That is ignorance and incorrect perception,
but it will take time for that to change. |
| Ted Rowlands |
| You said the degree of separation would be partly
determined by the degree of difference in law that would develop.
Let us look at say, without being too crystal ball gazing, look down
at a 5 or 10 year timespan which in the devolved areas we get some
more legislation of the kind like the Planning Act, or the Health
Act, the Health Act which operates negatively; eg. it does not create
foundation hospitals. Not legislating is also going to create differences,
is it not and imagine what would a 5 to 10 year period bring,
the kind of differences, the kind of way this would now take place;
nothing excessively dramatic but gradually significant. How important;
what repercussions would that have in the administration? Does changing
the legislation which reflects changes in policy attitudes to education
or health or Social Services necessarily then show up in any significant
way in the differences in the way you administer the law or the way
you hear the laws are applied or cases arise? |
| Mr Justice Thomas |
| If you had a distinctly different body of Welsh planning
law; for example, or a distinctly -- |
| Ted Rowlands |
| We know we have to have planning, let us take that,
is that going to lead to a distinctive planning judiciary? |
| Mr Justice Thomas |
| I do not think I can answer that question.
|
| Nicholas Cooke QC |
| It might do is the answer. Planning judicial review
applications could be dealt with by deputy High Court Judges with
Welsh experience but the pool of available deputies would be very
small and that might not be a good thing. |
| Mr Justice Thomas |
| Let us assume that there are two ways it could be
dealt with: one effectively within the current structure where what
you would do would be to assign say two or three judges to deal with
matters of Welsh administrative law because they would be people who
had sufficient expertise in it. Nick Cooke has mentioned the down
side of only having a few judges, but this is always a down
side of any small jurisdiction, but it does not prevent, for example,
the Baltic states or Ireland from having a separate judiciary.
It is a political question as to whether you balance expertise
and knowledge in a small country against the risk of only having
very few. There is a choice to be made. |
| Nicholas Cooke QC |
| Speaking as a generalist, in a small jurisdiction
there is a lot to be said for the generalist as opposed to the
specialist. The concept of a separate Welsh planning judiciary
does not make a great deal of sense, to be honest. You have a more
generalist approach in a small jurisdiction as mirrored in the
Baltic states and other small jurisdictions. That is how you deal
with it. |
| Mr Justice Thomas |
| But you can do that within the existing structure,
or if it was thought necessary, you could formalise that into a separate
division. But you can do it either way. |
| Ted Rowlands |
| I wonder whether you could perceive in the kind
of changes that are occurring, for example, Education Acts which allow
a completely different curriculum to be developed is not going
to generate, is it, the sort of different requirement in law as such?
|
| Mr Justice Thomas |
| I think the way you would see, supposing, hypothetically.
|
| Ted Rowlands |
| Foundation hospitals. |
| Mr Justice Thomas |
| No, it is not. I think certainly from when I last
looked at the figures one tends to generate public law work in Wales
which tends to be planning, There is no reason why that should not
continue. What would be a big change would be, for example, if
there was a greater devolution of criminal justice. Then, and
particularly there, you could see a difference. As I have said,
what you do to the courts and tribunals is really consequential upon
the changes you make elsewhere. But what is important is that there
are options that can be considered; the court structure can
be designed to fit round it. What the answer is depends on the factors
I think I have tried to give you. |
| Lord Richard |
| It is much of a doctrine of wait and see. |
| Mr Justice Thomas |
| It is, yes. |
| Lord Richard |
| It has to be. |
| Mr Justice Thomas |
| And I think it is a factor that you have
to bear in mind, but it is consequential upon moves elsewhere. |
| Peter Price |
| The issue of expertise verses small pool is one that
is faced elsewhere within the judicial system. For example, in the
High Court itself, what actually are the smallest units where that
expertise takes place? |
| Mr Justice Thomas |
| Probably intellectual property. |
| Peter Price |
| How many judges would specialise in that? |
| Mr Justice Thomas |
| Three who sit virtually all the time and a couple
of others who would help out, five. |
| Peter Price |
| And in the Official Referee or Commercial Court, what
sort of numbers? |
| Mr Justice Thomas |
| We are talking, 12 is the Commercial Court. In the
Technology and Construction Courts is about 12 -- 10 or 12. |
| Lord Richard |
| What about the Admiralty? |
| Mr Justice Thomas |
| There are two who do it all the time, but all judges
in the Commercial Court are also judges in the Admiralty, but there
are two judges who do technical Admiralty. |
| Peter Price |
| The small courts would be Admiralty two, and three --
|
| Mr Justice Thomas |
| Intellectual Property. |
| Nicholas Cooke QC |
| Planning has never been so formalised, but de facto.
|
| Ted Rowlands |
| Mr Cooke, you presented us with a sweeping
alternative structure and I know Mr Justice Thomas told us you
were also speaking individually from your own ear to the ground discussing
with colleagues. Are you a minority or a majority in this
view of Wales as far as you want to go? |
| Nicholas Cooke QC |
| Bare majority. I tried to give you a clear
answer, but I think there is a considerable fear in relation
to those who practise in the criminal justice system that it is being
undermined by increasing centralisation and the fact that it is becoming
out of touch with most communities. That is not confined to Wales;
that is a matter which is of concern. |
| Lord Richard |
| It is not a question of structures. It is a question
of policy the Government are pursuing, being undermined in all sorts
of ways. |
| Nicholas Cooke QC |
| That is perhaps true and controversial. |
| Lord Richard |
| Be controversial. |
| Nicholas Cooke QC |
| That is why I am here, but there is a structural
aspect to it as well. When I was a young man starting at
the Bar in South Wales I used to go to the Magistrates' Court.
I used to see these things. I learnt about those communities
through going there. That has all gone. That is a matter on which
people comment. It is becoming increasingly a system in which
Cardiff, Newport and Swansea are the only significant centres; other
courts are run down for economic reasons. That is removing the system
from its communities. |
| Lord Richard |
| You are asking a lot of the Assembly if you are
involved in that. You are asking to turn their eyes away from the
costs and focus more upon the social benefits. |
| Nicholas Cooke QC |
| I am not sure about that. |
| Lord Richard |
| Radical view. |
| Nicholas Cooke QC |
| I have not costed it, but it is intended to be
radical. Costs might well be kept down by looking at more flexible
solutions which the Assembly might wish to do. Why should not the
Assembly determine its priorities and what rates of remuneration might
or might not be appropriate. Is not the Assembly Government capable
of doing that? It is also the fact that the Legal Aid monster -- I can't
do the statistics off the top of my head -- is significantly
the product of a relatively small number of very high value cases.
I venture to suggest very few of them would be Welsh, if any.
The current debate as to the restriction of jury trial is largely
a matter which does not reflect Welsh problems. Welsh solutions
in relation to legal aid and jury trial availability might both sensibly
be different. |
| Vivienne Sugar |
| I am just prompted to recall the commitment to the
Assembly, Government to community cohesion and community regeneration,
and it would be very interesting now to have Edwina Hart, with her
new portfolio of social justice, to give her views on the kind of
ideas that Nicholas Cooke has just come up with. |
| Nicholas Cooke QC |
| I am happy to speak to anyone. |
| Lord Richard |
| I wonder if I could ask one question: you
all came, I notice, with pieces of paper. Could we have the pieces
of paper? It would be very helpful if we could. |
| Nicholas Cooke QC |
| It is the same piece of paper as last time! |
| Mr Justice Thomas |
| I can dictate it to you what I said. |
| Peter Price |
| Can I also press my point from earlier, not necessarily
for an oral answer now, but if we are adopting a topic approach
and given the complexities of the existing settlement derived from
too much breaking down of very specific powers according to particular
acts and sections, we did move, as we have been urged by so many lawyers,
to a topic approach then the administration of justice is too
wide a frame. It needs some kind of breaking up, some kind of
practical approach and we need help if that is to be part of our ultimate
recommendation and, if I may say so, I think that begs the
question whether it does, but I think any suggestions that can
be made about how that provision and how that line would be extremely
helpful in writing after the event. |
| Lord Richard |
| Can I thank you most warmly for coming. It was
a very good and stimulating afternoon, particularly if you are
a lawyer, but thank you very much indeed. |