The Commission on Justice in Wales, led by Lord Thomas of Cwmgiedd, former Lord Chief Justice of England and Wales, was the most significant review of the Welsh justice system in over a century.

It took evidence from a range of sources - from police forces and solicitors, to coroners and social workers - culminating in a mammoth, 500+ page report that examined the Welsh justice system at every level. Its chief recommendation was the devolution of policing and justice powers to Wales.

The report was published two years ago this past Sunday.

The National Wales spoke to key participants in the Commission, reflecting on the Welsh Government’s progress – or lack thereof – since that 2019 report.

But first…

Criminal Justice in Wales

Of all the devolved nations of the United Kingdom, Wales is unique.

Scotland and Northern Ireland each have near-full control over their policing and criminal justice systems. Both states can decide for themselves what is or isn’t illegal - with exceptions in areas like counter-terrorism, firearms, drug misuse and human rights - and control how they enforce those laws.

In a recent example of this, Scotland announced in September that some people caught with Class A drugs in the country may soon receive police cautions as an alternative to prosecution.

The National Wales: Scotland's legal chief, Lord Advocate Dorothy Bain QC, announced last month that some people caught in possession of Class A drugs may receive cautions instead of prosecution (Photo: PA)Scotland's legal chief, Lord Advocate Dorothy Bain QC, announced last month that some people caught in possession of Class A drugs may receive cautions instead of prosecution (Photo: PA)

Wales doesn’t have that autonomy.

Instead, we exist within a unified England and Wales criminal justice jurisdiction – England’s laws are our laws, and the top-level running of our police forces, courts, prisons and probation systems sits with Westminster.

Read more: Brother of murdered Daniel Morgan backs devolving justice to Wales

Since many of our devolved powers intersect with criminal justice – housing and health, for example – this arrangement can cause problems, as new laws introduced by Westminster inevitably overlap with those in Wales, causing tension between the separate goals of the Senedd and Westminster.

The Conservatives’ recent Policing Bill, for example, allows the UK Home Secretary to directly instruct councils, schools and health boards in certain circumstances – all bodies that are the responsibility of the Senedd.

Despite its lack of control over justice policy, the Welsh Government nevertheless spends significantly on justice, diverting millions each year to plug austerity-era cuts to police services, legal aid, as well as prison and probation services.

A 2019 study suggested that the government spent £709million on policing between 2017-2018 alone - and £250million on law courts and tribunals.

The Justice Commission

The Commission on Justice in Wales aimed to build on the work of the Silk Commission, which had looked at how devolution in Wales could be expanded. It was this project that led to the Wales Act (2017), which granted the Welsh Government limited powers to raise and lower income tax, among other powers.

The resulting report, Justice in Wales for the People of Wales, concluded that our complicated arrangement results in waste, poor accountability, and most damningly – “serious disadvantages” for people in Wales not experienced by those in any other UK country.

Recommendations included:

  • Allocating justice responsibilities to a single Welsh minister and department,
  • Creating a Welsh Criminal Justice Board,
  • Providing more detailed and Wales-specific criminal justice data, and
  • Greater use of alternatives to prison, particularly for women.

The report concluded that our problems could only be solved with full devolution of policing and justice, and appropriate additional funding to support it – bringing us more into line with Scotland and Northern Ireland.

Two Years On: Where are we now?

The Welsh Government, having pledged to pursue devolved justice in its 2021 manifesto, is attempting to negotiate for these powers, but Westminster looks unlikely to cooperate.

The UK government declined to make an official response to the Commission’s 2019 report, and argued that devolving justice to Wales would be too expensive.

Earlier this month, senior UK justice minister Lord Wolfson reiterated Westminster’s commitment to “protecting and promoting the combined strengths of the union”.

READ MORE: UK Government's police bill 'puts young people at risk'

The Welsh Conservatives called the notion of devolved justice "a power grab", with Shadow Minister for the Constitution Darren Millar adding: “Instead of spending all its energy on looking for further powers, the Welsh Government should concentrate on using its existing powers to get to grips with the issues for which it is already responsible."

The National Wales: UK Labour has yet to confirm whether it supports the Welsh Government's position (Photo: PA)UK Labour has yet to confirm whether it supports the Welsh Government's position (Photo: PA)

Meanwhile, devolved justice enjoys only limited support from the parliamentary Labour party. UK Labour has no official policy on the matter, and a January 2020 debate in the Commons saw Labour’s Chris Bryant, MP for the Rhondda, and Chris Evans, Islwyn MP, argue against it.

Lord Thomas, however, remains steadfast.

“Our report is very clear about what needs to be done in the interests of the people of Wales,” he says.

“The experience gained during the pandemic, far from casting doubt on our recommendations, makes them even important to implement.”

Rhys ab Owen, South Wales Central MS, is a barrister and the Plaid Cymru spokesperson for justice.

READ MORE: Wales union commission to be chaired by Laura McAllister

Ab Owen contributed to the Commission, and, like Lord Thomas, believes that its recommendations have only proven more necessary over time.

“It’s disappointing,” he says of the ongoing battle between Westminster and Cardiff.

“There was a strong body of evidence, expert contributors, and they’re unable to give firm, reasoned arguments against it.

“It’s always the same response - that we’ve been an England and Wales jurisdiction for X number of years, and that’s how it should remain.

“Justice is so interlinked with health, with education, with housing - it forms so much of the programme for preventing crime, and stopping reoffending.

“Having justice sit with Westminster makes no sense.”

The National Wales: MS Rhys ab Owen sits on the Senedd Legislation,Justice and Constitution Committee (Photo: Huw Evans Agency)MS Rhys ab Owen sits on the Senedd Legislation,Justice and Constitution Committee (Photo: Huw Evans Agency)

Ab Owen believes positive steps have been taken since the 2019 report. The formation of a dedicated Senedd justice committee, on which he sits, is one, and he’s optimistic about current plans for a Residential Women’s Centre in Wales, proposed as an alternative to sending women across the border to prison (Wales has no women’s prison), and at which living on-site would be optional for some.

But he worries that Westminster, far from granting Wales new powers, is seeking to wrest power back from the Senedd – increasingly legislating for Wales in devolved areas like health and the environment.

READ MORE: HMP Berwyn prisoners claim "inhumane" pandemic treatment

“They’re trying to take power back,” he says.

“But things change very quickly, it's very difficult to predict things at the moment.

“I think the ideology of the Prime Minister changes whenever it suits him - who knows, at some point in the future, he might view [further devolution] as advantageous.

“I think the only thing we can do, is to keep making the case that [our current arrangement] makes no sense.”

Prominent Welsh criminologist Dr Robert Jones, who submitted evidence to the Commission, and whose work was cited during the 2020 parliamentary debate, believes people in Wales will always be disadvantaged by our “unduly complex” constitutional arrangement.

“If nothing else, it has a massive impact on how the system is scrutinized,” he says.

“These debates are not just about devolution for devolution’s sake.”

Dr Jones was disappointed but unsurprised by the UK government’s response to the Commission’s report.

“Wales is a very small part of the England and Wales picture - there are far more prisons in the northwest of England and prisoners from the northwest of England,” he notes.

“From their perspective - why are they going to dedicate any real time? Why are they going to take account of that?”

READ MORE:

Being a small piece of a much larger puzzle, Dr Jones says, is part of the problem.

But though he fears Westminster “won’t give an inch”, he believes the Welsh Government could more confidently argue its case if it had a concrete, detailed vision for its post-devolution justice system.

Dr Jones added: “Within the government there’s this split between the constitutional big picture stuff - Mick Antoniw, the Union, and the devolved justice question within that – and then Jane Hutt, as Minister for Social Justice, who looks at housing for prisoners, prisoner healthcare, youth justice, hate crime, and so on.

The National Wales: Talks between Cardiff and Westminster are ongoing (Photo: Huw Evans Agency)Talks between Cardiff and Westminster are ongoing (Photo: Huw Evans Agency)

“The UK Ministry of Justice has all that in-house, but the Welsh Government doesn't have a justice department - it's straddling those siloed parts in government, and I think that's a bit of a problem moving forward.

“There isn't a specific vision for criminal justice in Wales - we don't actually know what it would do in detail yet.

“Would Wales have problem solving courts? Would Wales have significantly fewer police officers, or changes to police custody? We don't know.”

What does the Welsh Government say?

“We are disappointed the UK Government has rejected out of hand the central recommendation from the independent Commission on Justice in Wales to devolve justice and policing powers,” a Welsh Government spokesperson says.

“We will continue to make the case for devolution, while also making short-term improvements with the current powers we have, where we can.

 “We have made good progress in establishing a pilot Family Drug and Alcohol Abuse Court and a pilot Residential Centre for Female Offenders – both of which would prevent people from entering the ‘traditional’ justice system.

“Devolving justice would allow us to make different decisions.

“At the moment far too much money is spent on prisons and locking people up, instead of focusing on alternatives to custody, and measures which can help prevent people offending and stop the revolving door of prison.”

The government said Westminster's increasing tendency to legislate in devolved areas "undermines the Union and undermines Welsh democracy."

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