The Thomas Commission: Three Years on

Published 24/10/2022   |   Reading Time minutes

In October 2019, the Commission on Justice in Wales published its review of the justice system in Wales and concluded that “the people of Wales are being let down by the justice system in its current state”.

After delays caused by the Covid-19 pandemic, the Welsh Government published its response to the Commission in May 2022.

Three years on from the publication of the Commission’s findings this article looks at the Welsh Government’s Delivering Justice for Wales report, which sets out the government’s response to the Commission and its vision for Welsh justice policy.

The Thomas Commission Recommendations

The Commission on Justice in Wales (“the Thomas Commission”) was established by the Welsh Government in 2017 and was chaired by former Lord Chief Justice of England and Wales, Lord Thomas of Cwmgiedd. The central recommendation of the Commission’s report was that powers over justice should be wholly devolved and a Welsh legal jurisdiction created.

Delivering Justice for Wales reaffirms the Welsh Government’s agreement with this core recommendation, which has already formed part of the Welsh Government’s Co-operation Agreement with Plaid Cymru and the Welsh Government’s Programme for Government.

The Welsh Government also agrees with the Commission that the devolution of justice should come with a “full transfer of financial resources”.

The Thomas Commission found that although many of the powers over justice are reserved, the Welsh Government funds and has responsibility for large elements of the justice system. It also recommended that the Welsh Government should take a more strategic approach and provide greater leadership on justice policy.

To do this, the Welsh Government has established a Cabinet Sub-Committee on Justice, allocated justice policy to the Counsel General and Minister for the Constitution and established a small justice policy division of officials. Our article on the oversight and accountability for justice in Wales has more detail on the Welsh Government’s approach.

Family law is an area that the Welsh Government has committed to support within its current powers. Delivering Justice for Wales outlines the Welsh Government’s focus on children in care and its establishment of a pilot Family Drug and Alcohol court following the Thomas Commission’s recommendations.

In its response the Welsh Government also addresses recommendations made on tribunals and administrative justice. Many of these recommendations align with the Law Commission’s report on devolved tribunals that the Welsh Government has already welcomed.

There are also examples where the Welsh Government is engaging with the UK Government to explore joint working on some of the Commission’s other recommendations. This includes establishing a Residential Women’s Centre, giving its support for a Problem Solving Court pilot to take place in Wales and improving physical and digital access to justice.

Following the Commission’s recommendations, the Law Council for Wales was established in November 2021. It brings together representatives from the legal profession, law schools, judiciary, and others with an interest in the legal sector. The Law Council gave evidence to the Senedd’s Legislation, Justice and Constitution Committee in May.

What could a devolved justice system look like?

Delivering Justice for Wales sets out the Welsh Government’s vision for how a devolved justice system would operate. This includes upholding the rule of law, guaranteeing access to justice, and improving the experiences of victims, witnesses, and survivors.

The Welsh Government has said that it wants to give a more prominent voice to underrepresented groups in the justice system and take a rights-based approach to law and policy making. It has committed to work in partnership with experts, practitioners and people affected by changes to the system.

One of its objectives for change would be reducing the size of the prison population by pursuing alternatives to custodial sentences where appropriate.

The Welsh Government has said that it would like to see a devolved justice system that would protect and promote the use of the Welsh language and support the sustainability of the legal profession.

Forward Work Programme

Delivering Justice in Wales sets out what work the Welsh Government is planning to do in areas that are already devolved. The work programme includes commitments to incorporate UN Conventions on the Rights of Disabled People and the elimination of discrimination against women into Welsh law and to consider the case for a Welsh Human Rights Bill.

What is the Senedd doing to scrutinise this work?

One of the recommendations of the Thomas Commission was for the Senedd to take a more proactive role in scrutinising the operation of the justice system in Wales.

In January 2020, during the Fifth Senedd, the Senedd established the Legislation, Justice and Constitution Committee. The Committee held an inquiry on Making Justice Work in Wales, including evidence sessions with the Lord Chancellor, the Law Commission and the Welsh Government.

Since the Committee was re-established in the Sixth Senedd, it has engaged with legal practitioners and litigants on access to justice in Wales and has held evidence sessions with the President of the Welsh Tribunals, the former Chair of the Thomas Commission, and the Law Council of Wales.

Since the start of the Sixth Senedd, justice has also featured within the remit of the Equality and Social Justice Committee. The Committee is currently undertaking an inquiry into women’s experiences in the criminal justice system. In December this year, the Committee will also be looking at how young people with speech, language and communication needs are treated by the criminal justice system.

How have opposition parties responded?

The Counsel General and Minister for the Constitution, Mick Antoniw MS, made a statement on Justice in Wales in Plenary on 24 May.

Responding to this , Mark Isherwood MS, Welsh Conservative Shadow Counsel General, outlined his party’s opposition to the devolution of justice. He also asked the Counsel General to give further detail about how the Welsh Government is engaging with the UK Government on their justice programmes in Wales.

Plaid Cymru spokesperson for the constitution and justice, Rhys ab Owen MS, who also served as Head of Policy for the Thomas Commission, welcomed the publication of the document but called for further detail about how to achieve the devolution of justice and how the Welsh Government is preparing for it to happen.

Will the devolution of justice actually happen?

The Welsh Government and Wales’s four Police and Crime Commissioners support the devolution of justice. But crucially, the UK Government remains opposed to it.

The Ministry of Justice reaffirmed its position that maintaining the single legal jurisdiction is the “most effective way to deliver justice across England and Wales” and that the costs of creating separate jurisdictionswould not be justifiable”. They confirmed that they would continue to work closely with the Welsh Government, including on joint work on supporting women and young people, and taking forward some of the recommendations from the Thomas Commission.

With such diverging views, the Senedd is likely to keep a close eye on the extent to which the Welsh Government’s ambitions come to fruition in this key policy area.

Article by Josh Hayman, Senedd Research, Welsh Parliament