Getting it just right: Devolving justice to Wales

Published 13/02/2020   |   Reading Time minutes

Justice should be fully devolved to Wales, the Commission on Justice in Wales has said. Devolving justice would reshape the devolution settlement, bringing Wales into line with Scotland and Northern Ireland. As such, it would significantly change the responsibilities of the Assembly and the Welsh Government.

This blog looks at what devolving justice would mean for the Assembly and the Welsh Government and how they have each responded to the Commission’s report. To find out more about why the Commission was set up and what it recommended, you can read our blog on delivering justice in Wales.

Full devolution of justice proposed

The most important recommendation of the Commission is that justice should be fully devolved to Wales. Restrictions on the Assembly’s powers to legislate on justice would end and the Welsh Government would take on executive functions over justice in Wales. Control over all financial resources would also be transferred: the UK Government spent £723 million on justice in Wales in 2017-18.

The Commission says that the devolution of justice would require the Welsh Government to set up a new justice department headed by a Cabinet minister and that the Assembly should set up a justice committee to scrutinise its work.

Because devolution of justice would mean more legislation and more scrutiny work, the Justice Commission says it is ‘difficult to see how there could be proper scrutiny of a Justice Department or of Bills relating to justice if there was no increase in the size of the Assembly’.

The Commission finds that there is ‘no properly joined up or integrated approach’ with justice reserved to Westminster but policy areas like health and education devolved. For example, the Welsh Government is responsible for children’s social care and support for children in the courts, but the UK Government is responsible for family law. This complexity, the Commission says, makes it more difficult for the justice system to meet the needs of people in Wales and harder for people to understand who is responsible for what. It argues that devolving justice to Wales would allow the Assembly and Government to make justice policy to ’align with social, health, education and economic development policies in Wales’.

End to the single law of England and Wales recommended

As things stand, England and Wales make up a single legal system. The Assembly can pass laws that apply in Wales – but they still ‘extend’ to, or are legally recognised by, courts across England and Wales. Similarly, if the UK Parliament passes a law that applies only in England, that law still ‘extends’ to England and Wales. Since devolution, the law applicable in Wales has become increasingly different from the law applicable in England. Devolving justice is likely to lead to greater divergence. The Commission warns that it is increasingly difficult to identify the law applicable in Wales as opposed to England. To make things clearer, the Commission recommends that ’the law applicable in Wales should be formally identified as the law of Wales, distinct from the law of England’.

The Commission also looks at how the courts would need to change under the devolution of justice. As things stand, the Lord Chief Justice is the head of the judiciary in England and Wales and presides over the courts of England and Wales. With devolution of justice, the Commission recommends that a separate judiciary should be established in Wales, with a High Court and Court of Appeal and headed by a Chief Justice of Wales. This would form a judicial branch of government in Wales, to sit alongside the existing executive and legislative branches.

‘Clear and accountable leadership’ now needed

The UK Parliament would have to legislate for justice to be devolved to Wales in full. However, the Commission points out that there is plenty the Assembly and the Welsh Government can already do to shape law and justice in Wales.

The Commission says the Welsh Government needs to do better at making and scrutinising policy on law and justice. Because more than one minister in the Welsh Government has responsibility for justice, it argues, the Government has struggled to take a coherent approach. It says that this contributed to failures to deliver schemes including the establishment of family drugs and alcohol courts and of a scheme for alternative dispute resolution. To address this, the Commission calls on the Welsh Government to establish ‘clear and accountable leadership’ on justice policy.

The Commission also says that there is a need for the Assembly to scrutinise justice policy effectively. So far, different Assembly committees have scrutinised different aspects of justice policy. For example, the Health, Social Care and Sport Committee is currently holding an inquiry on the provision of health and social care in the adult prison estate. But the Commission says the Assembly should go further and take ‘a more proactive role’ in scrutinising justice policy, including by holding annual committee scrutiny sessions with senior members of the judiciary in Wales.

The Commission also argues that there is now enough divergence between English and Welsh law that it no longer makes sense for England and Wales to be treated as one jurisdiction for appointments to the Supreme Court. It recommends that a judge for Wales should be appointed to the Supreme Court, as for Scotland and Northern Ireland. This judge would be able to bring experience of Welsh law and how the Welsh devolution settlement works to the court .

Assembly and Welsh Government response

The UK Government has said it does not support the devolution of justice to Wales and will not formally respond to the Commission.

The Assembly debated the Commission’s recommendations on 4 February. The First Minister proposed that the Assembly support the devolution of justice and policing and that it support ‘the Welsh Government’s intention of both taking forward those recommendations within its current competence and working with other bodies to take forward recommendations within their responsibility’. The motion passed by 38 votes to 15.

The First Minister had previously announced that he had decided to set up a Cabinet committee on justice. The committee will be responsible for taking forward the recommendations that fall to the Welsh Government and overseeing discussions with the UK Government. The Assembly also decided to add justice to the remit of the Constitutional and Legislative Affairs Committee and change its name to the Legislation, Justice and Constitution Committee.

Article by Lucy Valsamidis, Senedd Research, National Assembly for Wales