The justice system in its current state is letting down the people of Wales. Access to justice and the funding and provision of advice need urgent attention, as do the family and criminal justice systems. Such are the conclusions of the Commission on Justice in Wales, headed by the former lord chief justice, Lord Thomas.

The commission’s report, Justice in Wales for the people of Wales, published in October 2019, found that the legal aid cuts brought in from 2013 have hit Wales hard. This has resulted in a lack of proper access to justice, with advice deserts in rural and post-industrial areas, a threat to traditional high-street legal services and a rise in the number of litigants in person. Such findings are unsurprising to anyone who has worked in the advice or legal sectors, but the commission suggests that Wales has suffered disproportionately.

Some of the headline figures are stark, with Wales experiencing a 37 per cent reduction of legal aid expenditure in real terms since 2012, compared with a 28 per cent reduction in England (para 3.11, page 94); in four of the eight legal aid procurement areas in Wales, there is only one housing law provider (para 3.32.1, page 104). Added to this, Wales has higher levels of income poverty than England, with almost one in four of the population affected (para 3.24, page 101). There are obvious challenges in ensuring proper access to justice, particularly in the large, sparsely populated rural areas and others of post-industrial decline.

‘Justice should be at the heart of government,’ the report states (executive summary para 2, page 8), but unlike Scotland and Northern Ireland, justice is not currently devolved to Wales. The commission, set up by the Welsh government, has concluded that urgent reform is needed and that justice policy and funding should be devolved to Wales. This would allow an ‘integrated approach’, aligning justice with other policies, such as education, health and social welfare.

Throughout the years of austerity, the Labour administration in Cardiff Bay has quietly worked to mitigate some of the effects of the cuts. For instance, it has ensured that, unlike in England, the number of police officers has not been cut. The Welsh government has also provided significant funding, from its own resources, for two of the largest advice providers, Citizens Advice and Shelter Cymru.

The commission recognises that ‘[i]nformation, advice and assistance are essential to obtaining access to justice’ (para 3.1, page 90). However, it notes that the removal of legal aid for much of social welfare law by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 impacted the Welsh advice sector and drastically affected its ability to provide access to justice.

That impact can be seen in a number of ways. The most obvious is the total collapse in the numbers of people able to gain legal aid for housing, debt or welfare benefit problems. It was a major factor in the closure of Cardiff Law Centre in June 2015, at the time the only Law Centre in Wales. A ‘brain-drain’ has also resulted, after many specialist posts were lost with the cuts. Several years later, it is still often difficult to recruit someone with specialist expertise and experience.

In mitigation, and in spite of having no responsibility for legal aid policy or administration, the Welsh government decided it should step in to provide support, with significant grant funding to Citizens Advice and Shelter Cymru: between 2011/12 and 2018/19, its funding for local Citizens Advice increased from £0.8m to £5m (para 3.37, page 108).

Nonetheless, the commission recognises real problems with advice funding. It cites the Wales Audit Office, from 2017,1Local authority funding of third sector services, Wales Audit Office, January 2017, pages 11 and 30. that local authorities mostly ‘do not have an effective strategic approach to working with the third sector, and inconsistencies in funding arrangements make it difficult to demonstrate value for money’ (para 3.38, page 112).

It concludes that, overall, advice funding in Wales does not ‘look at what is working well on a local level, is not focused on the beneficiaries and lacks a systematic and strategic approach’ (para 3.39, page 112). In addition, funding has very often been short-term and focused on projects rather than core funding.

The commission recommends ‘an overall coordinated approach to the issues of advice and assistance’ to address many of the problems raised, including:

The commission recognises the importance of such a body being independent, without setting out how this should be set up or funded. Again, considerable care and thought would be needed as to its terms of reference. For instance, it is not clear how far it would be answerable to the Welsh government and how it would work with the National Advice Network (a body set up from the advice community to advise the Welsh government, of which I am a member).

The main concern, however, would be that any attempt to ‘coordinate’ and bring together funding from different sources, even with the aim of ensuring sustainability, would in fact bring additional risk to a sector that has already withstood considerable shocks and uncertainty. AdviceUK cautions against any measure that could result in a universal credit-type solution, whereby a number of different funds are brought together (I should disclose here that I am an AdviceUK trustee).

Partly, this is the age-old ‘eggs in one basket’ argument. Diversity of funding, while more laborious and often difficult to achieve, allows greater resilience against financial shocks. Coordinated funding, meanwhile, is fine while it lasts but leaves an organisation all the more vulnerable should it be lost.

It would also be important to guard against a one-size-fits-all approach, or at least an element of standardisation, which is a risk of a coordinated system. The commission does recognise the danger of this, stating that any quality framework should ‘combine standards of quality with a proportionate approach to allow small providers to be included’ (para 3.66.1, page 123). The difficulty is that current quality standards are often too onerous for smaller local agencies, however essential they are to their local communities. There would therefore be a risk of further exclusion of such smaller agencies.

Litigants in person in family law and employment, in particular, are of concern to the commission. It recognises and endorses the good work of Support Through Court (formerly the Personal Support Unit) and pro bono employment work. It specifically recommends that Support Through Court should be expanded so as to be available at all courts and tribunals in Wales, with the implication that it receives significant additional funding to do so.

The report has received a cautious welcome from the National Advice Network, with its chair, Fran Targett OBE, commenting:

The commission’s headline recommendation is for justice to be devolved to Wales, bringing it in line with Scotland and Northern Ireland, and allowing for integrated policy-making. But the commission also calls both for greater leadership on justice within the Welsh government in the interim, and for an independent body to coordinate advice, assistance and legal aid.

This gives all parties much to chew over. The commission acknowledges the challenges faced by the advice sector in Wales, in its aim to provide effective access to justice for its clients. Those challenges can only be adequately met, however, by a properly funded and diverse community of advice providers.