The debate around the devolution of justice to Wales is not new. It’s been advocated by political commentators and academics; recommended by the Commission on Justice in Wales, 2019 (the Thomas Commission); and is a policy of the Welsh Government. It’s also formed part of the Welsh Government’s Co-operation Agreement with Plaid Cymru. But will it actually happen?
The UK Government seems committed to the status quo – keeping Wales within a legal and justice system it controls. This article considers why, when there appears to be little prospect of devolution of justice - in the short to medium term at least, we are still talking about it. We focus on the potential for partial devolution, specifically two areas of criminal justice - youth justice and probation.
(More) Commission reports
Two reports were published on constitutional reform in December. Gordon Brown’s report for the Labour Party on UK Constitutional Reform and the interim report from the Independent Commission on the Constitutional Future of Wales. The latter commits to reviewing the case for expanding devolved powers, including in respect of justice and policing;
The Thomas Commission has made a strong case for the devolution of these powers to Wales, as is already the case in Scotland and Northern Ireland. We have yet to be presented with a coherent argument as to why this is not desirable: we will continue to seek a wide range of views before reaching a conclusion on this and other current proposals for a more coherent Welsh settlement.
But the Brown report offers Wales a lot less. Instead of the devolution of the entire criminal justice system, it offers just youth justice and the probation service.
Calls for the incremental devolution of criminal justice have been made before. Early policy proposals from Mark Drakeford’s leadership campaign for First Minister included a push for the devolution of the probation service. Just weeks after being appointed First Minister, he said he wanted “to take a practical approach to devolution of the criminal justice system”, by focusing on the devolution of the youth justice system, probation service and new powers in relation to women offenders;
Those are the areas of the criminal justice system that sit closest to the responsibilities that are already devolved and where we could make the most immediate difference. I think, in a practical way, we should focus on those aspects first, and if we can secure their devolution to Wales, then we will be able to move on from there into the other aspects that would follow.
Almost three years on, the First Minister has made the case once again He reiterates his commitment to full devolution of justice, but insists the transfer of responsibilities for youth justice and probation could be ‘the first steps of the journey’. On the 9 December, he told Members of the Senedd these steps:
… will allow us …to develop the ground rules around the financial transfers alongside the responsibility transfers. And we will learn a lot and … we will move on to the transfer of policing and then the courts, and so on, that we will have developed a template for the funding side of those things in those more modest services of youth justice and probation.
The probation service
The probation service is responsible for providing advice to the courts on the most appropriate sentences for those found guilty of an offence. It also has responsibility for managing offenders who receive community sentences and supervising those released from prison on licence (who will have served part of their sentence in custody).
The probation service is responsible for the rehabilitation and reintegration of these offenders; working closely with devolved services including social care, housing support, substance misuse and mental health services.
Several Community Rehabilitation Companies (CRC) were set up in 2015 in response to the partial privatisation of the England and Wales probation service. In Wales, the CRC contract was awarded to Working Links, who assumed primary responsibility for managing low and medium risk offenders. The failings of the CRC are well-documented; it’s covered by leading academics Robert Jones and Richard Wyn Jones in their book ‘the Welsh Criminal Justice System’. They describe the partial-privatisation of the service as “an unmitigated disaster”.
So disastrous, in fact, that in June 2020 the [UK] government was forced to reverse course and announce the full renationalisation of the service.
The National Probation Service Wales took back responsibility for the management of all low, medium and high risk offenders in December 2019.
The story is more positive in youth justice. There’s been a radical reduction in the number of young people who end up in custody, and significant numbers of young people who would otherwise have ended up in trouble with the law have been diverted through prevention and early intervention programmes.
The Welsh Government’s Youth Offending blueprint has been underpinned by an approach that’s distinctly Welsh; with children’s rights at its heart. Children and young people are treated as ‘children first and offenders second’. This contrasts to the more punitive approach to youth justice policy-making taken by the UK Government.
Jones and Jones’ book explains that youth justice:
is a part of the criminal justice system that features not only extensive devolved responsibility, but also a sustained attempt by the Welsh Government to forge its own distinctive policy approach towards children (under 18) in conflict with the law.
Youth justice services in Wales were talking about the impact of trauma and Adverse Childhood Experiences (ACEs), long before it featured in UK youth justice policy and practice.
That said, there is still more to do. Jones and Jones remind us that the age of criminal responsibility in England and Wales remains one of the lowest in Europe. The Thomas Commission recommended that the age of criminal responsibility in Wales be increased to 12 years (from 10 years old).
Some groups of young people in trouble with the law also continue to face serious challenges. Jones and Jones highlight that children from minority ethnic backgrounds are more likely to end up custody compared with white children. Recent evidence given to the Senedd’s Equality and Social Justice Committee also revealed the struggles young people with speech, language and communication needs can experience when trying to navigate the youth justice system.
Women and criminal justice
The First Minister’s third ambition; “to seek more powers in relation to women and criminal justice” is currently the subject of a Senedd Committee inquiry. The Welsh Government has a Female Offending blueprint, but the story there seems to be one of delay and lack of progress.
A personal ambition for the First Minister
The First Minister’s early pledge to secure the devolution of youth justice and probation has been hampered by the COVID-19 pandemic, which has dominated his premiership. The First Minister says he intends to stand down in 2024, and will surely be disappointed if Wales is no closer to taking responsibility for these services. After all, he was a probation officer long before he entered politics, and a leading academic on youth justice policy.
Can the First Minister persuade the UK Government to change its mind – to devolve youth justice and the probation service? We will have to wait to see.
Article by Sarah Hatherley, Senedd Research, Welsh Parliament