The Welsh Government has established a Commission on Justice in Wales – among its aims being to ‘promote better outcomes in terms of access to justice’. The commission has proceeded rather slowly in Wales and attracted pretty well zero interest in London. This is unsurprising since the English have long had a problem with a separate Welsh identity. The Principality boasts more than 400 medieval castles – now seen as tourist attractions but originally intended for colonial subjection. And the English imperial sneer can still be heard. Sir Thomas More’s attributed line in A Man for All Seasons still raises a laugh (at least for English audiences) ‘… it profit a man nothing to give his soul for the whole world. . . but for Wales!’. However, slowly, the Welsh are asserting themselves. Devolution allows separate Welsh legislation, particularly in the area of social matters.
The Commission has published a paper for a Law Council for Wales which deals with the substantive issues which it feels should be addressed and how that might occur through a new council. Its essential argument is that ‘While resource is limited, especially in view of the post-industrial and rural demographics, the twin potentials for a more joined-up approach, and for collaborative or partnership ways of working, are considerable.’ The Council would be an independent advisory body with a wide remit over legal matters including the justice and legal education system but also including ‘access to justice and accessibility of the law in Wales’ and ‘the development of “law tech”’.
Responses to the commission have been somewhat variable. In the space of a short eight paragraph reply, the General Council of the Bar thrice gave a modern interpretation of the denial of St Peter: ‘This is a question, relating to the approach to justice jurisdiction, which has a political dimension, and on which our members in both England and Wales are likely to have a range of views on this question. For those reasons we refrain from giving an answer either way.’
We can do better than that. The first point to make is that the Welsh should feel no compunction to follow English policy. The front runners in the United Kingdom on access to justice are now decidedly the Scots. Scotland shows the advantage of a small jurisdiction in managing legal aid and legal services in ways which are specifically focused on its particular circumstances. For example, Scotland has been able to avoid the wholesale cuts to legal aid scope and eligibility which have been imposed on England and Wales. The calibre of the English Ministers of Justice since 2010 has not, overall, been high. The current incumbent, David Gauke, is certainly better than the instantly forgettable Liz Truss or Chris Grailing, but he is clearly devoting most of his time to the all-consuming issue of Brexit.
The Scottish government has recently commissioned and received a report on the future of legal aid. This set itself the ambitious vision of Scotland as ‘a global leader in supporting citizens [to] defend their rights, resolve problems and settle disputes’. It set out a refreshing broad approach both to service delivery and institutional organisation. The report recommended recognition of the need to combine a comprehensive approach to the delivery of legal information and advice from both the advice and legal sectors. It argued that there should be a new arm’s length public delivery body called in this report the Scottish Legal Assistance Authority. This would have overall responsibility for the delivery of publicly funded legal assistance, along with powers to monitor and quality assure delivery, monitor access and adjust the delivery model as a result. There should be competitive led investment in ‘just in time’ legal information and advice online platforms. All publicly funded legal assistance services should be required to adopt an explicit ‘any door will do’ policy. The policy would actively refer a caller/visitor to a specific and appropriate legal assistance service provider and offer to make an appointment.
In other words, the Scottish report was arguing for a comprehensive approach to the provision of legal advice and information – using technology and other forms of delivery in a way that co-ordinates services funded by legal aid, the citizens advice service and local authorities or others. This is very similar to the approach developed by the regional legal services committees developed by the English Legal Services Commission before it was abolished by the Coalition government.
A move towards that would be the creation of some form of ‘Legal Navigator’ site for Wales along the lines being developed in Alaska and Hawaii by the US Legal Services Corporation. Adapted for Wales, this would be for something like legalaid.wales. It would refer people to the national advice information sites citizensadvice.org.uk and advicenow.org.uk. It would highlight and cover particular Welsh issues. It would provide referral to local resources whether commercial, pro bono, salaried or volunteer. It could provide some locally developed self help material. Its success would be dependent on bringing together a team committed to the project and capable of inspiring the various individual organisations concerned in the way that Illinois Legal Aid Online has done – largely, in its case, through being part of the pro bono community. Such a website would be, on the one hand, a fairly small step and, on the other, should be seen as a re-orientation towards digitally-led services supplementing and extending face to face provision.
A characteristic of Wales is that it has been hammered by the twin blows of post-industrialisation and UK government austerity. An all-party committee of the Welsh Assembly reported in 2015: ‘Half of people in poverty live in working households. Changes to the labour market mean that work is no longer a straightforward route out of poverty … Poverty in Wales is higher than the UK average, and the proportion of the Welsh population living in relative income poverty is forecast to rise. The Institute for Fiscal Studies forecasts that child poverty in Wales could increase by around a third by 2020.’ Wales has areas of poverty that are socially isolated in once industrial and mining areas as well as rurally remote communities in mountainous territory. Technology must represent a major way in which scarce resources can be leveraged to maximum effect. And technology should be a major part of any access to justice policy.
Thus, there must be some form of political infrastructure to provide leadership for legal advice and information services outside the confines of the major legal professional bodies so unwilling to comment on the need for a Welsh minister for justice. There needs to be one and she/he needs to be supported by some structure for implementation of an agreed comprehensive plan. God save us from another committee. But some form of Access to Justice Action Group with a charismatic chief executive might be appropriate. Anyway, good luck with that.
Picture from Pixabay.