Understanding devolution in Wales
Understanding devolution in Wales

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Understanding devolution in Wales

2.1 Thomas Commission

The Commission on Justice in Wales – chaired by Lord Thomas of Cwmgiedd – was established by First Minister Carwyn Jones in September 2017 to:

deal with the unfinished business from the Silk Commission, which made a number of carefully reasoned, evidence-based recommendations, in respect of justice - covering the courts, probation, prisons and youth justice. It will also address crucial issues relating to the legal jurisdiction and the challenges facing the legal services sector in Wales.

(Welsh Government, 2017)

Commenting, Mr Jones said:

In Wales, we have had a separate legislature for 6 years but, as yet, we do not have our own jurisdiction. By establishing the Commission on Justice in Wales, we are taking an important first step towards developing a distinctive justice system which is truly representative of Welsh needs.

(Welsh Government, 2017)

The Commission followed the well-rehearsed pattern of gathering and considering evidence before making 78 recommendations in a 556 page long report two years later. The report’s unambiguous conclusion was that ‘the people of Wales are being let down by their legal system’ and there should be legislative devolution of justice to the Assembly including devolution of youth justice, policing and crime reduction policy.

It also recommended:

  • to accompany legislative devolution, there should be executive devolution of functions relating to justice in Wales to the Welsh Government
  • devolution of justice should also be accompanied by a full transfer of financial resources
  • the law applicable in Wales should be formally identified as the law of Wales, distinct from the law of England
  • the Assembly should take a more proactive role in the scrutiny of the operation of the justice system.
(The Commission on Justice in Wales, 2019)

In the interim, Mark Drakeford had taken over as First Minister. He set out the main findings of the report to AMs in a statement on 5 November 2019 and committed to making progress where the Welsh Government had the powers to do so, such as developing training and legal education. He also created a Cabinet committee on justice to drive progress forward.

The UK Government did not agree with the Commission’s conclusion that justice should be wholly devolved and a Welsh jurisdiction created. Chris Philp MP, Parliamentary Under-Secretary of State for Justice, said during a Westminster Hall debate on devolving justice to Wales in January 2020 that the UK Government has no intention to ‘produce a full and formal response’ because the report was commissioned by the Welsh Government, not by them.

Philp said the UK Government does not agree with the Commission’s conclusion that justice should be wholly devolved and a Welsh jurisdiction created. In doing so, he set out the reasons for coming to this conclusion, including that the cost could not be justified. However, he also said that the UK Government ‘will work closely with the Welsh Government to ensure justice policies are aligned and to take into consideration distinct Wales needs’.

Download this video clip.Video player: Video 2 The UK Government response
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Transcript: Video 2 The UK Government response

CHRIS PHILP
The member moving today's motion made a case for what essentially amounts to full devolution of justice functions to Wales, in line with the recommendations of the report which Lord Thomas recently published. I would like to respectfully disagree with her conclusion that wholesale devolution of justice to Wales would be in the interests of Wales, for, broadly speaking, two or three different reasons.
Let me start with her argument that there should be a congruence between the parliament of Wales and the justice jurisdiction of Wales, so that the justice system matches the laws. I think that argument-- to avoid this jagged edge that Lord Thomas refers to in his report. I don't think that argument is a wholly valid one, because of course many laws, indeed actually most laws that apply in Wales are reserved matters which have been legislated on in this parliament. In fact if you look at the laws that have been passed in the 11 years since 2008, the Welsh parliament has passed 62 new laws, this parliament has passed 600, the vast majority of which do also apply to Wales. And if you look at the law on reserved matters, the very fabric of the legal system, so legal principles such as criminal responsibility and capacity, mental elements of offences, criminal liability, sentencing, the law relating to homicide, sexual offences and offences against the person, are all reserved matters where UK, rather England and Wales law, applies. So, devolving justice in the context of a body of law which remains majority England and Wales would actually in my view exacerbate, it would worsen the jagged edge problem that the right honourable Lady referred to, because it would then apply to these reserved matters which are far larger in number than the matters which have been lesiglated for at the Welsh level, separately. And indeed it would be further exacerbated because the Thomas Report, interestingly, does not recommend that the legal profession and its regulation and its qualifications be separated. It recommends they remain the same. So if you were to devolve justice to Wales, you would have a further incongruity in that you would have a single legal profession with the same qualifications across two different systems, so I think that would be a further exacerbating jagged edge.
Now some members speaking today have referred to the interface between justice and other devolved issues, and in particular education and health, which are obviously devolved matters, they've been mentioned in particular. And I was talking to a very senior official working in the Ministry of Justice's Welsh department, dealing with day-to-day justice matters. And I put this question to that official. And their view was that it would make no real difference whether justice was devolved or not, to that interface between justice and education/health. Whether education and health are being run in Wales and you're talking to them with an England and Wales MoJ, or a Welsh MoJ, that interface between departments would still exist, whether the MoJ sat under an England and Wales umbrella, or a Wales-only umbrella.
This report was commissioned by the Welsh government, in fact by the previous First Minister of Wales. It wasn't commissioned by the UK government, so there is not an intention to produce a full and formal response to the Thomas Report. However, what of course we are going to do, is discuss the issues that it raises in detail with the Welsh government in Cardiff, to see where we can constructively improve our working relationships across some of the issues that are raised. And the honourable Lady has touched on a couple of those already. So we do want to improve the level of cooperation that we have with the Welsh government, we do want to make sure that where there is joint working, and where there is an interface – with for example with the health system that many members have mentioned – that is working as well as it can. That we are cooperating, we are reflecting some of the unique circumstances in Wales. So those conversations will certainly happen, we'll approach them with a constructive and an open mind. But I can say as I said a moment ago, that we don't agree, I'm afraid, with the conclusion that we should wholly devolve justice and create a Welsh jurisdiction. And one of the reasons for that actually is the second point I was about to come on to before the intervention, which is the question of cost. Now the Thomas Report actually doesn't talk about the question of cost at all, and perhaps the reason for that is there is a very significant cost. Now the Silk Commission which reported a few years ago, I think in 2014, did cost the establishment of a separate Welsh jurisdiction, and they estimated – and adjusting for changes that have happened since – the extra cost, the incremental cost of creating a separate jurisdiction would be about £100 million a year. Now that is £100 million which could be spent on more probation officers, more police, all of the things we've been talking about, and we don't feel that the imposition of that extra cost is at all justified. For example, you would have to replicate the Ministry of Justice's own functions at the Welsh level. Wales doesn't have a women's prison, which of course itself is an issue, or a Category A prison. All of these issues will have to be addressed. The MoJ is currently hugely upgrading its IT systems, and there are obviously economies of scale. If a Welsh Ministry of Justice had to do that itself, obviously that would be extremely expensive. And that cost of £100 million a year we don't believe can be justified.
I would also say that devolution in itself is no panacea. It doesn't automatically solve problems. It's obviously been well documented that in areas of for example education, where per capita spending in Wales is much higher than in England, educational outcomes are nonetheless worse, so the idea that devolving something somehow automatically makes it better, I don't think necessarily holds.
I've said already, Mr. Stringer, that we don't concur with the Thomas Report's principal conclusion that justice should be wholly devolved. But we are going to work closely with the Welsh government to ensure justice policies are aligned, and to take into consideration distinct Welsh needs. Taking for example the recent transfer of probation services in Wales to the national probation service, this is a clear example of distinct justice policy in Wales that can be achieved under the current settlement. And joint MoJ–Welsh government blueprints on youth justice and female offenders were published last year. A successful example of co-development of strategies across the devolution boundary. Welsh prisons perform well when compared with their counterparts in England, and Welsh law firms benefit from being part of a world-renowned justice system. The justice landscape in Wales is faring well. That said, we absolutely agree that the administration of justice in Wales requires regular review to ensure the needs of Wales are being met. In addition to ensuring that justice policies are designed with Wales in mind, we regularly evaluate the wider arrangements to ensure they are fit for purpose. Honourable members will be aware that during the passage of the Wales Act 2017, the government committed to undertake a regular review of justice in Wales. An advisory committee was established in 2018 comprising the judiciary, legal profession, legal regulators, operational delivery arms as well as members of the Welsh and UK governments. The committee published a report in July last year which made a number of recommendations about the justice system in Wales, particularly around accessibility of law and the management of divergence, and we are taking those recommendations forward. Mr. Stringer, the Welsh government's decision to commission Lord Thomas to undertake a review was founded on the basis it believed there was ‘unfinished business’ from the Silk Commission, to use their words. On the contrary – the decision that Wales should continue to be part of the single jurisdiction by the Silk Commission was reached after careful consideration of the merits for and against devolution, and it is our firm view that the current settlement works best for Wales.
End transcript: Video 2 The UK Government response
Video 2 The UK Government response
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