Mick Antoniw.

Q143 The Chair: Good morning and welcome to this meeting of the House of Lords Constitution Committee. Today, we hear from Mark Antoniw, who is a Member of the Senedd, the Parliament in Wales. We have a few questions to ask. As you know, we are doing an inquiry into the rule of law. Recently, we had discussions with some of your colleagues from Scotland, Northern Ireland, and, obviously, within the United Kingdom it is important that we should hear an authoritative voice from Wales. Your experience and knowledge certainly provide us with that. You very kindly offered us some written evidence on judicial review, for which we are grateful. If there is anything you would like to add to that, please do so, but it is relatively self-explanatory.

My first question is a broad one. How do the Welsh Government work with the UK Government and other devolved Administrations to uphold and promote the rule of law?

Mick Antoniw: Thank you. That is an interesting question and very topical. Of course, we operate closely with the other devolved Governments in Northern Ireland and Scotland. I should say that I am giving evidence in my former capacity as Counsel General; I am sorry that I could not make the earlier meeting that you had. That is where my experience arises from, as well as being a former chair of the Legislation, Justice and Constitution Committee in the Senedd and a long-standing practising lawyer, until I came to the Senedd 15 years ago.

The main way in which we engage is through what is called the intergovernmental framework. The development of that started with Theresa May when she was Prime Minister because of all the difficulties that had begun to emerge, particularly post Brexit, in respect of engagement over legislation and policy. There were issues around the Sewel convention, where the UK Government will not normally legislate in devolved areas. That developed until just a couple of years ago, really, when it formed what was basically a fairly well negotiated and developed framework.

The framework really has three parts. One is the decisions that take place on an interministerial level. For example, whether that is on education or justice, et cetera, there would be an interministerial group where the relevant Ministers from Wales, Scotland, Northern Ireland and the UK would meet to talk about any common issues emerging about legislation, Sewel-related issues and so on. The middle framework was the interministerial standing committee, which had a rotating chair. Michael Gove would chair from time to time, as would I, and Scotland, et cetera. That was meant to be a sort of middle level, where there would be an attempt to resolve any issues, disputes or problems arising from the interministerial meetings. The most serious issues would ultimately go to the top tier, a meeting of the Prime Minister and First Ministers. Since the general election, that seems now to have developed into devolved and regional Governments as well.

I think it was a good framework and had some successes. It provided for a disputes system which has never really been used and a mechanism for an independent secretariat which seems quite small and to be still in the process of being properly established. I do not think the framework ever developed its full potential, but its biggest weakness, certainly from my experience up until the time of the general election, was that it was totally dependent on good will. The fact that there was no justiciability to it and no statutory basis meant that Sewel was consistently overridden. Early engagement on legislation and so on were not really working.

That is relevant to the rule of law because the ability to develop good and effective law is dependent on proper engagement, particularly in an area where you have a number of Parliaments with relevant input. There is an issue in that ability to engage early on. There should also be the ability, where devolved issues are impacted, to have that properly scrutinised at a parliamentary level—within Wales, for example—but that was not happening. Really, the weakness was in having something so dependent on trust, when it is probably fair to say that trust and goodwill were in very short supply by the time of the last general election.

I have always taken the view that what is needed is a new constitutional reform Act that would put this into a proper constitutional and statutory framework. That is how we engage. Of course, with every piece of legislation that the Senedd is involved in, our competence is dependent on ensuring that we are compliant with UK and international legislation and conventions, as well as with our non-reserved responsibilities.

Q144 The Chair: You probably answered my secondary question: should intergovernmental engagement on rule of law issues be strengthened? Listening to what you said, you particularly think that the Sewel convention and how it works as part of the structure that supports the rule of law should be legislated for under a new constitutional reform Act. Is that correct?

Mick Antoniw: That is absolutely right. Something that has no proper statutory framework is, ultimately, subject to the whims of political change and so on. I think that that is bad constitutionally and bad for the rule of law. Being dependent on good will and trust is all very noble, but we know that within political systems you need a framework that holds the individual parties to account. You also need a proper dispute process—one which we hope will not be used, but as long as it is there, it means the parties have the onus and incentive to properly engage.

The Chair: It is sometimes argued by those who do not favour a statutory solution to this that what we have provides flexibility and that statute could be replaced by good will between the parties. After all, we are all part of the United Kingdom. Do you accept the flexibility argument at all?

Mick Antoniw: No, I do not, because it has been shown not to work. We had 20 years, post devolution being set up in Wales, where Sewel was never breached. In the past five years Sewel has been consistently breached, but also the legislative engagement process has never really worked properly. That has been to the disadvantage of the legislative process in both Westminster and the devolved Governments. I think that legislation would create a framework.

What is desperately needed is that the Sewel convention is put within some form of justiciable framework. Various mechanisms have been offered. Gordon Brown produced a report on this. It was for the Labour Party but it dealt very well with how you need some constitutional certainty in the way in which Sewel operates. Obviously, that tied in with broader constitutional reforms. Certainly, we need some mechanism that means it cannot be overridden on a whim. There must be at least some recognition in the parliamentary process that if Sewel is being overridden then Parliament, certainly in Westminster, is aware of that and the reasons for it, and is required to take some kind of formal decision on it, whether that is 50%, a two-thirds majority, or whatever.

It certainly needs to be in a much stronger position than it is at the moment, where Sewel means different things to different people. I had a discussion at one of the interministerial meetings, where it was clear that one understanding of it was as little more than a duty to consult. In actual fact, a legal or constitutional convention must have a higher status. If there is no framework within which it operates, it really is debased in value.

Q145 Baroness Andrews: Bore da, Mick. It is very good to see you again. In the context of what you just said, I am reminded of how well we worked together on a parliamentary basis to develop the common frameworks, which you could argue was another bit of the process of developing the rule of law uniformly by engaging across the union. I think that underpins what you said about the need for better formal engagement as well. It was a very successful process—when we were left to ourselves, in a way.

Obviously, we have been looking at the rule of law. The exam question is: is the rule of law resilient to all the changes and is it being eroded in different ways? We have had a wealth of evidence that you could say catalogues the ways in which the rule of law is being eroded, whether you look at the consistent application of international law or the component of the rule of law which requires access to justice, which is where the main consensus seems to be. Given what you must know about the way the committee has collected this evidence, do you think that the threats to the rule of law are different in Wales?

One specific question came out of evidence—I think it came from one of our voluntary bodies—talking about the Single Advice Fund, set up in 2020 to make it easier for people to access advice but not necessarily to follow through on the actual process of getting justice. Could you comment on that in the context of the broader question? Thank you.

Mick Antoniw: Thank you for that. Again, there are some very pertinent questions there. I will try to go through them. The paper that I circulated ahead of this meeting is the introduction I was asked to give to a meeting of public law lawyers. I put it through to you because it broadly covers areas around the rule of law. Of course, with lots of lawyers you will get all sorts of different understandings of what the rule of law actually means. I will summarise how I see these things.

Basically, our constitution is the compact or agreement between the people and government, and how government will operate the exercise of popular sovereignty. The rule of law is really all the democratic checks and balances put into place to protect people. As I am sure you will already have heard, Lord Bingham, who was such an architect and exponent of the rule of law, was very clear on this. You see from quotations that he often addressed the rights of citizens.

The point you raised about access to the law is something I have been very concerned with over many years. For example, there has been the diminution of the legal aid system. When the post-war Government addressed the issue of access to law and the legal aid Act was introduced, it was very clear that certain principles underpinned it. I think it was Viscount Simon who, at the time, took it through the Lords and basically said, “Look, what we are doing is creating, for legal access, the equivalent of an NHS. That is, if people don’t have access to the law, they are disempowered”.

I think we have got to a stage now with the diminution in legal aid over the years where complete sections of our society and communities have, in effect, no real access to the law. They are disempowered as far as the law is concerned. I know that various Presidents of the Supreme Court and its members have commented from time to time that if people do not have access to the law, it undermines the rule of law because they seek alternatives to the legal system. We have moved away from and lost the principle of what access to law is about: empowerment. Where we are is a very difficult position because most people, by and large, do not have access to the law.

The Single Advice Fund is something we set up within Wales. Legal aid is not devolved. We have called for it to be devolved because we think it could be used more effectively if applied locally—provided that the proper funding came with it. When we set up the single advice fund, we put, I think, about £11 million a year into it. That gives groups and bodies such as Citizens Advice and so on access to legal advice and representation. It is very much a sticking plaster on the weakness of our current legal aid system and the availability of access to the law. Nevertheless, it has dealt with several hundred thousand people and recovered a lot of money for them. It has sorted out a lot of problems in many of our communities, such as people with debt, family or housing problems, and so on. Any elected representative will know that one thing that they get through the post regularly now is people asking for basic legal advice or where they can be referred to get it.

In many cases now, people basically just take what comes and accept that they have no access. We saw that very much in looking at Lord Bellamy’s review of the legal aid system as far as criminal legal aid and legal representation were concerned. In parts of the Valleys of South Wales, half the people who were arrested and entitled to a lawyer chose not to have one because of this difficulty and how long they could be held until they could gain access to a lawyer. Put all those things together and I think accessibility to our law is in a dire state. That is also part of the issue of the challenge to the rule of law: if people are excluded from it, the rule of law is undermined.

Q146 Baroness Andrews: There are two issues specific to Wales. One is Lord Justice Thomas’s review of what else needs to happen to bring about things such as more devolution, which we can possibly park. The other question is access to the Welsh language as a rite of passage into legal rights. Apart from those two defining characteristics, is there anything else in the Welsh condition which you think really impacts on the way that the rule of law operates, for better or worse, compared with the rest of the UK? I know that that is a big question and that evidence is elusive, but is there anything we could hang on to there?

Mick Antoniw: I think the issues that impact on Wales are the same that apply in various parts of the UK. There will be parts of the UK that have very similar issues. We have had half of our courts closed. Local justice, certainly in our Valleys areas, is effectively non-existent. The principle was that magistrates should be local and justice administered locally: that went quite some time ago. A decade ago, over half the courts were shut. Of course, there is the issue of accessibility of people even to the courts. You have people who, quite frankly, will not turn up to a court hearing. They will wait to be picked up by the police because that makes travel and accessibility to the court better. The same is true of people being able to get to court to give evidence. There is a real issue in terms of what has been done in court closures. We need to rethink the concepts of what justice and local justice are, and what we want them to deliver. Now, the question is basically how we administer the application of laws to people rather than how we administer justice. Again, that is part of the jigsaw, that fragmented concept of the rule of law as it impacts on many people but particularly, probably, the poorest and most vulnerable in our society.

Baroness Andrews: Was the closing of the courts, especially in the most densely populated parts of Wales, a policy decision or a pragmatic one driven by resources? I have one other question, Mick, which I am afraid is quite different. Do you think that Covid affected the relationship people hold with the law? We received evidence last week, I think, that the police felt there was a shift in the whole set of relationships, for example, in people relying on the law and on other people to follow it. I wondered whether that was true of Wales as well.

Mick Antoniw: Just on court closures, I think that was purely finance-driven. The issues of what the justice system should be or what we need it to be to properly deliver justice came second to, “How do we cut costs?” It was purely a cost-cutting exercise. That applies equally to the very dire state of some of our courts. That underinvestment then implies a certain undervaluation of the justice system. That is how people then begin to perceive it as well, so that is what was behind that.

On Covid, one thing we were clear about when going through the various steps in regulations, restrictions and so on applied during that time was that, of course, you had to carry people with you. At the end of the day, enforcement would not enable respect for the various regulations and restrictions in place. There had to be acceptance. At every stage, every decision taken was based on asking, “What impact will this have?”, and, “To what extent will people buy into this and comply with it?” There were a lot of evaluations of public intentions, assessments and so on. There were certain things we might have wanted to do during Covid—“Look, this will be the most effective thing that we should do”—but the reality was that we did not think people would go along with that. Whether that was wearing masks, travel restrictions or so on, we could not enforce it. The actual credibility of the law depended on the fact that it was explained to people, and that they bought into it being in their collective and community interests. All along, maintaining that was an intense focus in decisions being taken in Wales.

The Chair: Thank you. You mentioned Lord Bellamy. He has a question ready.

Q147 Lord Bellamy: Good morning, Mr Antoniw. First, I express my appreciation for the courtesy you extended to me when we had discussions together when I was a member of the previous Government. Even though we did not always agree, I always felt that we managed to have a productive discussion in the end. What lessons, if any, do you think the UK Government can learn from the devolved nations about how to effectively uphold the rule of law? You already mentioned the single advice fund. For myself, I would have thought that the success of Pathfinder in Wales in the private family law sphere is another example. Maybe you could help us understand how the UK Government can benefit from the experience of the devolved nations.

Mick Antoniw: Thank you for that and also for your courtesy in what I thought were very useful discussions around these issues, looking for solutions. Again, there was your role in the Pathfinder project that has now been extended to Wales as a consequence. That is very welcome.

The lessons are quite difficult. One of the most difficult parts of this, of course, is that the whole legislative process is one of common engagement and information sharing to produce good legislation. I suppose the issues are common. We reached a stage where there was a lot of legislation that impacted on issues around the rule of law—and human rights and so on, which are part of that. It became very difficult when we got to a stage where there was legislation coming through Westminster, to which we were asked to consent, where it was clear that even the legal advice around it was that it was potentially unlawful or in breach of international law. Whether that was the Rwanda issue or those I remember around the Northern Ireland protocol, the peace agreement and so on, those became very difficult. There was a clear difference of opinion between us and certainly the Westminster Government at that particular time as to how we could consider consenting to legislation that was underpinned by potential unlawfulness.

I was very interested to read the speech of the Attorney General, Lord Hermer, when he delivered the Bingham Lecture recently. He referred to three areas in terms of international law, moral law and so on. He referred also to this issue of the concerns about having a Parliament prepared to adopt legislation that might be in breach of international law. Those things created difficulties.

From our side, we are in a different statutory position on the input we have into the legislative consent process and our engagement with the UK Government. All our powers come from the Government of Wales Act and subsequent legislation. Within that, any legislation we pass must be within competence. Of course, it is out of competence if it is not in compliance with legislation, such as on human rights, or with international obligations and conventions. In fact, on every piece of legislation we pass, if it is not compliant with those, it is out of competence. We have had as a focus in all our discussions on legislation that this is a primary determinant in whether the legislation can proceed. When we had those particular discussions they could, of course, become quite tense.

In terms of lessons, the things we have been doing that impact on the rule of law are basically to understand why it is being challenged and to some extent under threat. I think that is because there is a lot of mistrust now in the law, in politicians and Parliament itself. Where significant sections of the population no longer trust the democratic processes and structures, that is a challenge to the rule of law. What underpins that? Of course, a lot of things do. There are the things we have talked about, such as access to the law. I also think that inequality has a major impact on not only populism but how people perceive the democratic structures. Our electoral system is a major issue in whether people feel that the system actually represents them. With my partisan hat on, I was happy to see the change of Government at the general election, but there are certainly real issues where you have an electoral system in which you can win two-thirds of the seats on one-third of the vote with 60% turnout and 20% of people not even registered to vote. There is a challenge there in that democracy is at a precipice. That impacts on many people. If they are disengaged from all those processes, it begins to undermine their perception in terms of democracy, our democratic structures, whether those laws that are passed apply to them, whether they should comply with the law, et cetera. I think that is what we are beginning to see within our society.

We have tried to start addressing some of this in Wales, within the powers we have in respect of our own electoral system. We will have elections in May 2026 and I will stand down at that time; having reached my 70s now, it is probably time to move on. I took through our Senedd reform and electoral reform legislation. We are introducing a system of proportional representation and one of automatic registration, meaning—we hope—that everyone will be on the electoral register. That does not mean that they will be forced to vote; that becomes another challenge. But if you are not on the register, you cannot actually participate.

One really important area is a matter that the Attorney-General referred to in his Bingham speech: education. We have changed our curriculum within Wales to broaden out the capacity to deal with issues of civic education and so on, yet there is a real issue in education. We are trying to address it but still have a long way to go. It is something that should apply to the whole of the UK. The education system needs to address the issues of civic education, how our democratic structures work, what people’s roles are in participating and how they can influence decisions. If they do not participate or feel part of it, that in itself undermines the rule of law.

When I went to secondary school—grammar school as it was then—my first year was the year that the law was changed from people leaving school at 14. It was changed to 15, then 16, then 18. We now have young people going through up to the age of 18, with very little educational understanding of the way in which our democratic processes work. Of course, we have votes at 16 for our Senedd and Welsh devolved elections. What is important is that people are prepared for civic and democratic life. That means also having an understanding of what their responsibilities are. I hope that answers you, as best I can. It is an inadequate answer, in so far as there is probably so much more that needs to be done pan-UK, as well as within Wales.

Lord Bellamy: Thank you for that very wide-ranging answer.

The Chair: Yes, thank you. We turn now to Lord Murphy, who has been very patient.

Q148 Lord Murphy of Torfaen: Good morning, Mick.

Mick Antoniw: Good morning. Bore da.

Lord Murphy of Torfaen: The Senedd of 2025 is hugely different from the Assembly of 1999, with new powers, new responsibilities, new duties and new legislative powers. Lord Thomas’s commission into justice in Wales recommended devolution of justice and policing. By the way, I have changed my mind a bit on that: I think there is now a strong case for it. Do you think that that would have an impact on the Welsh people’s understanding of the rule of law?

I will give you one example. You mentioned earlier the courts being closed in Wales. Of course, that was done by the United Kingdom Government. Were policing and justice to be devolved, the responsibility for those courts would lie in Cardiff. I am not saying that you would not have had the same financial pressures but you might have had different priorities. That is one example where it might have had a direct impact on the accessibility of justice and therefore on people’s perceptions of the rule of law in Wales. Do you think that the devolution of justice and policing would in fact have an impact on the Welsh people’s view of the rule of law?

Mick Antoniw: I think that it would, because it would mean that particular problems and issues that arise within our communities could be addressed more easily. I agree with the conclusions that Lord Thomas came to. Of course, the independent commission chaired by Laura McAllister and Dr Rowan Williams addressed similar issues. A plethora of commissions have looked into this. I think the devolution of justice needs to happen over a five, 10 or even a 15-year period. It is not something to be done by the stroke of a pen. It also involves a reappraisal of what justice actually is and what we want our justice system to deliver.

I think the first issue is probably that of the Welsh jurisdiction. We have an England and Wales jurisdiction. What does that actually mean? It is really a historic jurisdiction, but where you have a Parliament in Wales that has now passed, what, 90 major pieces of Welsh legislation and several thousand pieces of secondary legislation, you begin to have a divergence. You have it also because of legislation passed by the UK Parliament which does not apply to Wales. I do not think there is any problem with divergence. It is about devolved powers being used to try and address local, regional and national problems. So, first, jurisdiction is something to be addressed. Where Welsh law is involved, cases are by and large heard in Wales, in Welsh courts. They are sometimes heard in the Welsh language. The tribunal system, which deals with a lot of issues of mental health, special needs and so on, is devolved within Wales.

I think jurisdiction is a very simple thing to change. When the High Court sits in Wales, it is the High Court of Wales. The England and Wales jurisdiction is now outdated. How can you have a hearing in Wales that is England and Wales when the law applies only to Wales, or vice versa in England? We see that in legislation. If we pass legislation in Wales that applies to Wales, it is a “(Wales) Act” on that subject matter. If you have legislation passed in England which applies only to England, it does not say it is an “(England) Act”. There are issues there in how you identify the application of legislation.

More importantly in terms of the devolution of law, we can start with what I think are the most clear-cut issues—for example, those to do with youth justice and probation. Inevitably, policing comes within that, too, because it is such an integral part of the delivery of local justice and a lot of local services. On devolving youth justice, nearly everything involved in that—all the agencies and bodies—is devolved. Anyone who sits in the youth courts, as I have done, will see that the problems of the young people appearing there are to do with housing, failures in and exclusions from education, or to do with health. They may be to do with family drug and alcohol issues. All those things are devolved, so youth justice not being devolved makes absolutely no sense whatever.

Again, probation has been through a tortuous period with privatisation and then going back into the public sector. Of course, we have devolved responsibility for health and education. When people come out of the prison system, you do not want them to go back in. The issues of how they are housed, employed and supported, et cetera, become fundamental. Those are all devolved issues. Again, these are things that Lord Thomas, Rowan Williams and Laura McAllister commented on at length.

Another thing in terms of justice is what our justice system is. Much of it is to do with family issues. We had discussions with Lord Bellamy over things that were happening in terms of developing the drug and alcohol courts. We had a joint project in Cardiff that was very successful but did not continue for financial reasons. I hope it will run again. The idea in the family courts is how you actually solve the problems. The issues of the family, of the children, are quite often related to housing, employment, drug and alcohol problems, and so on. All those things come within the devolved framework, so the delivery of justice needs to be honed in far more within the devolved functions. I do not think that can be done via the sort of Victorian centralised justice system that we inherited. It really needs reform. That applies not just to Wales but across the UK.

Lord Murphy, I am not sure if I wandered too far off the subject or whether I answered your question adequately. Please remind me if I missed something.

Lord Murphy of Torfaen: I think you answered it more than adequately.

Q149 The Chair: Yes, thank you very much. I have just one small further question. Does having two legislative bodies make it more complicated for people to have a good understanding of the law as it applies to them in Wales?

Mick Antoniw: The answer is no. The issue of people’s understanding of the law and access to it is quite often dependent on their status in society but also their accessibility to legal advice. That is the common problem we discussed earlier. It is sometimes more of a problem for lawyers. For example, a lawyer undertaking a particular issue based in England will not understand that areas such as housing, environmental or planning law may be different within Wales. There is an issue in terms of training lawyers and understanding that, if they deal with cases in Wales, they need that training both at university and qualification level. Of course, judges already have that training. That has been very much on their agenda and has taken place. They are well aware of it. There is also an increasing use in courts by lawyers and participants of the Welsh language, when they wish. You probably know that it has been only since the 1940s that people in Wales have been able to give evidence in the Welsh language. There is a confidence issue there, but it is one that is probably increasing in its usage.

The Chair: Thank you very much indeed for taking the time and the trouble this morning. We have all on the committee learned a lot about what is happening in Wales and your view of the rule of law. I am very grateful to you. I will now bring the public session to an end.