Devolution of Justice: Wales

Alun Cairns Excerpts

Tuesday 29th November 2022 Westminster Hall

[Alun Cairns (Vale of Glamorgan) (Con)]

I congratulate the right hon. Lady on securing the debate. She makes important points about the detention of women, and I know that the Ministry of Justice has sought to discuss the issue, negotiate and open facilities in various local authorities. My constituency was a consideration at one time, but no suitable accommodation could be found. Is that not an example of the Ministry of Justice seeking to answer the issues that have been raised? Local authorities themselves are rejecting it.

[Liz Saville Roberts]

I will return to that later, but because the right hon. Gentleman has raised the point, I will engage with it now as well. There is a residential unit in planning for one area of Wales, but we really need to know exactly which services will be there. Will it effectively be a small-scale prison, or will it actually offer the services that women need? We also need to know what the interface will be between the devolved service and the reserved provision. That is a very timely point, because it has just become apparent at the private prison near Bridgend, HMP Parc, that the local authority has had to step in to take over social services there. Again, this ad hoc arrangement, the lack of clarity and the lack of scrutiny over who is providing what is resulting in bad outcomes, which is why the debate is so timely.

It is evident that there are not many of us in this room. That is actually part of the issue, because Westminster will concentrate on where the loudest majority issues are. However, there is a phenomenon in Wales: the disconnect. Frankly, if this is the best we can do in relation to the disconnect with the highest imprisonment rates in western Europe, we must consider looking at the issue in an alternative way.

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[Liz Saville Roberts]

I am grateful to the hon. Gentleman for his intervention, and I am honoured that Members from across parties are pointing out the inconsistency that we are experiencing in Wales.

The UK Government’s prison population projections from 2021 to 2026 anticipate that prisoner numbers in the England and Wales conglomeration will rise to 98,500 by March 2026. Those are extraordinary figures. As part of that increase, the Ministry of Justice anticipates that the number of adult female prisoners in England and Wales will increase by over a third—36%. Disaggregated data from Wales shows that the number of Welsh women in prison will likely increase from 227 to 308. Therefore, the provision that is being planned now for south-west Wales, although welcome—even to those of us who disagree that that number should be arriving in the system—is highly unlikely to deal with the numbers we are anticipating to arrive in the system.

Under the plans that took effect in May, the maximum prison sentence that can be handed out by magistrates has increased from six months to a year, which is also expected to contribute to a rise in prisoner numbers. Disaggregated sentencing data shows that the average custodial sentence length for women sentenced in Wales already increased from seven months in 2017 to 13.6 months in 2021. Although 23% of the Welsh female prison population was serving sentences of four years or more in 2019, that has increased to 29% in 2021. How does that align with the Welsh Government’s stated aim to reduce the number of Welsh women in prison? The answer, of course, is that it simply does not because there is no direct link between the very worthy policy, which most of us support, and the means to bring it about.

I am pleased that the UK Government are working with the Welsh Government to establish a pilot women’s residential centre in Wales as an alternative to custody, and my probation service in north Wales is doing very good work to the best of its ability on the ground, but the policy and structure that we have in place hinder it. In truth, the number of women supported will be small and focused in very specific areas of Wales. Therefore, my second question to the Minister is: given that overall incarceration of women from Wales will increase, does he honestly believe that to be coherent policy making for women in the criminal justice system in Wales? Particularly since the autumn statement, it looks likely that Departments such as the Ministry of Justice will have less capital money to spend in the long term. I wonder where that leaves the development of multiple women’s residential centres across Wales.

Another issue that shines the cold light of reality on the jagged edge is housing. Housing and the responsibility for preventing homelessness lie, as we all know, with the Welsh Government, and have done so for 22 years, but the policy aim is not properly aligned with the Westminster-controlled criminal justice system at present. The removal of priority need for prison leavers in the Housing (Wales) Act 2014 was driven by several factors, including low levels of housing stock and pressures on hard-working local authority staff in finding accommodation for prison leavers. It was, however, in part due to the inability of the Welsh Government to control or even influence the upstream factors that affect the rate and timing of demand for housing prison leavers. Even though prison leavers still get let out of prison on Fridays, they get no support at the weekend. The outcomes of that need proper scrutiny.

Those factors include the rapid rise in prison leavers from an ever-expanding prison population, the long distances from home addresses, which reduce the likelihood of prison leavers being able to receive support services, and the fact that Welsh prisoners are widely dispersed across England, making it hard to know when and where the demand will arise when they return to Wales. The same facts apply equally to English-address prisoners held in Welsh prisons. This is not looking at the justice experience just from a Welsh perspective but as a totality.

[Alun Cairns]

The right hon. Lady is looking at this from a purely nationalistic point of view, and I understand the motive behind that. Does she not accept that a prison in England could be closer to a prisoner in my constituency, and more appropriate than what she envisions in her purist approach, which is that the prison must be in Wales? If it were in north Wales, it would be four and half hours away.

[Liz Saville Roberts]

With respect, there are a number of prisons close to the right hon. Gentleman’s constituency. I was emphasising that women are at present going to prisons in Gloucestershire or Cheshire. If we sent prisoners from south-east England to Parc or Berwyn, they too would be very distant from their homes. That is not an effective way to ensure rehabilitation.

[Alun Cairns]

That is a challenge that we need to address sensibly, but simply saying that a Welsh prisoner needs to stay in Wales is not sensible. If a Welsh prisoner needs to stay in Wales, must they travel four and half hours from north Wales to a prison in south Wales? We need to recognise the interconnectivity between Wales and England; 50% of the Welsh population live within 25 miles of the border.

[Liz Saville Roberts]

With respect, the right hon. Gentleman is looking at the convenient location of prisons, rather than at justice outcomes, which is what I hope we look for in our scrutiny. It is not a matter of where people go; it is a matter of their coming back to the communities where they have committed crimes. I am looking at this not just from the point of view of those individuals and their families, although I hope the children of prisoners would certainly be our consideration, but from the point of view of the communities to which they return.

I hope we all aspire to effective rehabilitation. Yes, we penalise people by taking away their liberty, but when they return to the community, we hope that they are healthier than when they went to prison, have the opportunity for more education, are housed, can find work and have a stable family environment. That is all down to services, and there is a jagged edge where there is no interconnectivity between reserved and devolved powers.

To return to housing, since the removal in 2014 of priority need in Wales, there has been an increase in the number of prison leavers presenting as homeless. As we have mentioned, housing is a factor in the success or otherwise of rehabilitation. In the year 2019-20, fewer than half of those released from prison custody who were managed by probation services in Wales went into settled accommodation. However, simply reintroducing priority need for prison leavers is meaningless unless we have proper joined-up working between criminal justice and social services providers, as the local authority in Bridgend does.

I have emphasised the two issues of housing and women in the criminal justice system to highlight the illogical nature of the misaligned mishmash of powers and responsibilities, which leads to problems in the operation of justice in Wales. There are countless other examples I could have chosen from across the justice system: policing, probation, courts, education, health services, access to justice and the experience of victims in Wales.

The portrait of justice in Wales is so ill drawn that it can only be presumed that the Ministry of Justice assumes that no one is looking. We are at least looking today, but there is the important question: what is to be done? The Thomas commission proposed the devolution of justice responsibilities to

“enable the proper alignment of justice policy and spending with social, health, education and economic development policies in Wales, to underpin practical, long-term solutions; place justice at the heart of Government; enable clearer and improved accountability.”

Devolution of justice is not simply a nice thing to have, a policy toy to play with. It is essential if we want to build a better and fairer society. It is the only way truly to end the jagged edge and create a system that genuinely serves the people of Wales. It would also offer some protection against the attack on human rights and civil liberties that the UK Government have been undertaking, such as their curbing of protest rights through the Police, Crime, Sentencing and Courts Act 2022.

It is hard to see how the Welsh Government can develop any plans for a Welsh Bill of Rights without having full control over justice in Wales. I have tried to think from the opposing point of view, and there are three points that critics of what we propose might throw back at us. The first is the cost of devolution. When I spoke in the debate on the Thomas commission report three years ago, the Minister at the time claimed that the additional running costs would amount to £100 million per annum, but that is not even consistent with the evidence provided by the UK Government to the Thomas commission. Rather, the UK Government’s 2018 estimate was that the initial set-up costs associated with devolving justice—all right, at the time; fair enough—would amount to £101.5 million, with subsequent additional costs of some £37.5 million per annum.

Focusing on the additional financial costs involved for devolved Government, the Welsh Government estimated set-up costs of £13 million, with £10 million per annum of additional costs to follow. In other words, excluding set-up costs, the extra incremental cost of devolving justice would come to less than half the amount claimed by the justice Minister three years ago. That is in the context of an annual spend on justice functions in Wales of some £1.2 billion.

Moreover, while there would clearly be some additional costs involved in devolving justice, there are estimates that Wales would benefit financially if justice were devolved. Per capita spend on justice is lower in Wales than in England, but if justice were devolved, the operation of the Barnett formula would, over time, ensure that the amount in the Welsh budget derived from UK spending on justice in England equalised at the English per capita level—that is, it would be more.

While it would ultimately be up to the Senedd to decide how to allocate the extra resource, those funds would be available for spending on justice-related functions, such as crime prevention, tackling substance misuse and reducing homelessness. As it is, the Welsh Government are already putting money into funding extra police community support officers. There is an argument that people in Wales pay more for policing than people in England. This change would ensure better scrutiny, and that the money spent for Wales would be accounted for in Wales.

The potential to reduce homelessness gives an example of the real savings that could be made as a result of our reducing the negative outcomes of the justice system. The charity Crisis has estimated that

“people who experience homelessness for three months or longer cost on average £4,298 per person to NHS services, £2,099 per person for mental health services and £11,991 per person in contact with the criminal justice system.”

It is a matter of whose budget we look at to see the savings. They are not all siloed in one place.

As Lord Thomas himself noted in evidence to the Senedd last year, devolution presents a great opportunity for Wales; we could

“take advantage of Wales’s relatively small size and its lack of a vast metropolis to see if you can mould the workings of the bodies together to produce a coherent policy that is designed for the needs of Wales, rather than the needs of a much bigger country with very different potential problems.”

When it comes to the operation of justice in Wales, small really is beautiful, flexible and community focused.

Let me move to the second point I anticipate being used to counter what we propose. Advocates for the status quo might say, “We need better funding for the system.” That does not account for the structural issues at play here. Yes, fair and proper funding for Wales is vital for the operation of justice, but as I have highlighted, different policy decisions in Wales and Westminster are creating unavoidable tensions and failures, which money alone cannot solve.

There are two structures in play, and they are pulling in different directions. For example, even in the years of austerity in the 2010s, under a devolved system, the Welsh Government might well have chosen not to close so many courts or pursue the absurd privatisation of probation. We could have made different policy choices, even in the context of reduced funding.

The last Labour general election manifesto sadly rolled back from implementing the Thomas report, citing that it was a case for only reversing austerity rather than pursuing devolution to Wales. Therefore, cautiously, I ask the shadow Front Bench to recommit fully to implementing the Thomas commission report, just as they committed to doing so in their previous manifesto in 2017. If they will not, the question is whether the Labour party is intent on undermining its Labour colleagues in the Senedd.

Thirdly, other advocates of the status quo point out that it is not further devolution that we need, but better joined-up working between the Ministry of Justice and Welsh Government officials. However, even experienced MOJ officials in Wales are often overridden by their superiors in London, through policy decisions that often have no thought about Wales. There are agreements in place between the MOJ and Welsh Government, such as the concordat published in 2018 to establish a framework for co-operation between the MOJ and Welsh Government. However, in practice, such agreements do not work properly. As my hon. Friend the Member for Arfon (Hywel Williams) showed when he questioned Ministers about the memorandum in the context of the development of the Police, Crime, Sentencing and Courts Act 2022, it was unclear whether the UK Government followed the concordat and consulted properly with the Welsh Government on the Act, in spite of the impact that so many of the changes to policing and justice would have on devolved policies and competences.

Where UK and Welsh Government are aligned on justice matters, progress is slow. For instance, the Thomas commission recommended that problem-solving courts be established across Wales to promote alternatives to custody and tackle root causes of offending. The UK Government are piloting problem-solving courts, but not one is in Wales. It is in the Welsh Government’s justice work plan to pursue the establishment of a court. Can the Minister tell us what recent engagement he has had with the Welsh Government on establishing problem-solving courts in Wales?

The Welsh element of justice will always be an afterthought. My hon. Friends the Members for Arfon, and for Ceredigion (Ben Lake), run after Ministers saying, “Have you thought of this? Have you consulted on that?” The answer almost invariably is a bland no. Then, we find that we have to catch up.

On accountability, the mechanisms and institutions of the English and Wales system do not properly engage with the Welsh part. Let us take the Lammy report—a landmark report on racial disparities in justice. There is no real engagement on how devolved services interact with the justice system in Wales, or exploration of the Welsh content. The specific needs of Wales are drowned out on the Justice Committee. The Welsh Affairs Committee has sought to scrutinise the effect of the interface between reserved and devolved matters.

[Alun Cairns]

I am grateful to the right hon. Lady for making some points about racial injustice. Does she share my frustration that the Welsh Government chose not to be part of the race equality audit established by the former Prime Minister, my right hon. Friend the Member for Maidenhead (Mrs May), to provide a baseline of evidence? There were active invitations and efforts made to encourage the Welsh Government to participate, so that we could establish whether the same problems existed in Wales, and they chose not to. That runs contrary to the right hon. Lady’s statement that Wales is an afterthought.

[Martin Vickers (in the Chair)]

Order. I remind hon. Members that interventions limit the time available for other Members to speak.

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[Alun Cairns (Vale of Glamorgan) (Con)]

Thank you for calling me to contribute, Mr Vickers. I congratulate the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) on securing the debate. It is unfortunate that we have such limited time, but I will try to canter through some of the key points that I want to make.

I approach this debate as an advocate for devolution and as the former Secretary of State who took the Wales Act 2017 through Parliament. It is hard to believe that in 2010 our inheritance from the last Labour Government was the legislative competence order system, whereby the Welsh Assembly had to ask permission to pass legislation in any particular area. It is worth remembering how far we have moved from the system between 2010 and today, when we have a full law-making Parliament in Cardiff Bay. I hope that sets out the context for my remarks.

During the development of the Wales Act 2017, it was clear that some were determined to devolve justice, irrespective of the evidence from within the profession that did not support that devolution. We agreed to disagree with the Welsh Government in the end, with the First Minister specifically saying that he would revisit the matter. The only conclusion I could draw was that the political elite wish to see the devolution of justice, rather than the issue being raised on the doorstep, or forming part of a campaign from those in the profession or our constituents, who really wish for genuine improvement in this area. That is not to say that improvements do not need to be made—they do—but there have not been calls for devolution of the issue, other than from the political elite.

I also note that the Commission on Justice in Wales was established by a devolved institution on a reserved policy matter. Imagine if the UK Government decided to have a commission on health or education in Wales—devolved policy areas—without there being equal and active engagement with the other party. That demonstrates that the political elite are driving this agenda, rather than this being something that is demanded.

The right hon. Member for Dwyfor Meirionnydd based her claim around genuine problems that need addressing. I am not denying that there are challenges in the system. We all remember the challenges in Wales—it could be said that they are even greater partly as a result of the intervention by the Welsh Government, who closed down the courts during covid when they were still functioning in England. That is an example where the Welsh Government have sought to influence justice in a negative way.

The right hon. Lady said that devolution of justice is a chance for Wales to have better outcomes. If I wanted to be flippant, I would point to the outcomes in health and education; sadly, our waiting times are longer, and our education outcomes certainly have not improved, as they have across England and Scotland in the past decade or more.

The key point I want to make in the limited time I have is about the importance of the industry that is the legal system operating between Wales and England. Extremely profitable large law firms based in Cardiff form part of an ecosystem that develops businesses, often from the City of London or other parts of the United Kingdom. Functions and professional legal expertise are provided in Cardiff, creating some of the most highly paid jobs in a desired legal profession, creating career opportunities and allowing people to move inside and outside Wales to develop their business model. Some of those firms have office spaces in the City of London and attract the business of the City, and the functions are then conducted in Cardiff. Devolving justice to the Welsh Government and to Wales would really undermine those business models. Those are the businesses that the right hon. Member for Dwyfor Meirionnydd should talk to.

[Hywel Williams]

The right hon. Gentleman made the claim earlier that this is a matter of the elite calling for change, and then he makes an argument for elite lawyers in Cardiff.

[Alun Cairns]

I would like to see more elite lawyers in Cardiff, because raises gross value added and creates career opportunities for Welsh people, wherever they come from.

During the negotiations on the Bill that became the Wales Act 2017, I received representations from some of the most senior lawyers in England and Wales, who were very concerned about the agenda of devolving justice and the damage that would cause to the sector.

[Liz Saville Roberts]

Where does the right hon. Gentleman think our priorities should lie—the business models of law firms or justice for people living in the communities of Wales?

[Alun Cairns]

I am grateful to the right hon. Lady for the question, but I do not think they are mutually exclusive. We can address the injustices that the right hon. Lady has raised—those genuine challenges need to be addressed, and I look forward to the Minister’s response—but that should not undermine the large employment numbers, the well-paid positions and the career progression that is provided for people, certainly from my constituency, who work in law firms in Cardiff and south Wales. Lord Thomas of Cwmgiedd called for the development of that cluster, but the right hon. Lady’s proposals would do nothing but undermine it.

[Martin Vickers (in the Chair)]

I call Hywel Williams. Four minutes if you could, Mr Williams.

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[Anna McMorrin (Cardiff North) (Lab)]

Thank you, Mr Vickers, for the chance to respond to this debate. I pay tribute to all who have contributed. It is not lost on me that the debate is happening today of all days, as we face England in the football. Yma o hyd. Pob lwc, Cymru. I am sure we are all behind the Wales football team this evening.

A fair and effective system is fundamental to any country, and 12 long years of this Tory Government have completely broken the justice system across England and Wales. When the Commission on Justice in Wales undertook that unprecedented examination of justice, its conclusion was unequivocal:

“the people of Wales are being let down”

by the justice system. Crime is high, charges are low, criminals are getting off and victims are being let down. With record court closures, a decade or more of cuts and crippling court backlogs, the UK Government’s inability to adapt to current pressures and to lead through a victim’s focus is letting every one of us down.

A survey by the Victims’ Commissioner for England and Wales revealed that less than half of victims would report to the police again due to their traumatic experiences. The former Victims’ Commissioner, Dame Vera Baird, said in her resignation letter that the

“downgrading of victims’ interests in the government’s priorities”

is appalling, and she criticised the UK Government.

That is not just our view; it is the view of victims too. My constituent Sarah, who reported being sexually abused by her doctor, had her truth misbelieved and mistrusted in court. She was stripped of her dignity in the witness box, and was subjected to vicious public humiliation and personal attacks in the so-called pursuit of justice. She told me:

“I felt like I was being publicly beaten and humiliated. I wouldn’t advise anyone to go through it”.

In Wales, many of the services are the responsibility of the Welsh Labour Government, yet the overarching justice system is at the mercy of this Tory Government. We must recognise the scale of the challenge we face. It is clear that the UK Government’s current approach is not working. They must work with the Welsh Labour Government to see how things can be managed in the future, and above all ensure that victims come first. We must focus not on where but on how justice is delivered.

The probation system in Wales was brought to its knees by a failed privatisation, based on the untested and untried payment by results system. The Tories were repeatedly warned that it would not work, but they persisted anyway. The Welsh Labour Government have done their best to mitigate the worst of the impact across the justice system, but the only solution is to have a UK Labour Government in Westminster working with a Welsh Labour Government in Wales.

[Alun Cairns]

The hon. Lady is making important points that obviously would need to be debated if there were time, but do the Labour Opposition in Westminster support the Welsh Government’s call for the devolution of justice? At the time of the development of the Wales Act 2017, they were opposed to it.

[Anna McMorrin]

The right hon. Gentleman is getting ahead of himself, although I absolutely hope that there will be a UK Labour Government shortly. We in UK Labour are working closely in partnership, as we would in government, to ensure that the best justice system is focused not on where justice is delivered, but on how it is delivered. That is done in partnership, and the details must be worked out.

[Alun Cairns]

Will the hon. Lady give way?

[Anna McMorrin]

That is absolutely not being delivered by this UK Government, who have systematically broken the criminal justice system. It is appalling. Day in, day out, I speak to victims who are suffering and traumatised, and who have been retraumatised by the justice system that this UK Tory Government are presiding over. Only one in 100 rapes recorded by the Welsh police resulted in a charge last year, let alone a conviction.

[Alun Cairns]

What is Labour’s position?

[Anna McMorrin]

The right hon. Gentleman should listen, rather than chuntering away on the sidelines.

One victim, Rachel, told me:

“They didn’t treat me as a human being”,

as she relived her traumatic experiences in the justice system. She felt that the system was worse than the rape itself.

On International Day for the Elimination of Violence against Women, the crime survey for England and Wales released its latest figures, showing that 1.7 women experienced domestic abuse in the past year alone, but everyone knows that the true number is much, much higher. According to figures reported by the BBC, about 60% of women in custody across the UK have experienced domestic abuse.

In May, the then Justice Minister, the hon. Member for Louth and Horncastle (Victoria Atkins)—I have lost count of how many Justice Ministers we have had since—finally announced the pilot for the women’s residential centre in Swansea. That came four years after the Government originally announced it in their female offender strategy, even though they labelled it a priority, and the centre will not actually open until 2024. Across Wales, there are a total of zero female estates, and recent Cardiff University research shows that last year 218 Welsh women were sent to prisons in England.

This Conservative Government’s priorities have never been on the side of victims, and they continue to treat vulnerable women as an afterthought. Labour has long argued for facilities for vulnerable women with complex needs who would otherwise be sentenced to custody. They need a safe and secure facility that is fit for purpose, and that allows them to maintain contact with their families, especially their children. Shockingly, as the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) pointed out, Wales has more people in prison than almost anywhere in western Europe. All the evidence shows that a sentencing policy that is based heavily on punishment, deterrence and imprisonment is counterproductive.

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[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

It has been a pleasure to serve under your chairmanship today, Mr Vickers; I think this is your first outing in the Chair. I congratulate the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) on securing the debate, and am grateful for her significant contribution on justice in Wales over the past several years. I thank all hon. and right hon. Members for their contributions.

The right hon. Member for Dwyfor Meirionnydd secured a previous Westminster Hall debate, which took place on 22 January 2020, on the report by the Commission on Justice in Wales, otherwise known as the Thomas commission, which was published in October 2019. It is inevitable that we have touched on many of the same issues today. In the intervening period, work on considering and, where appropriate, implementing the Thomas commission recommendations was delayed by the coronavirus pandemic, but the right hon. Member has ensured that it remains a live issue for this House.

It will not come as a surprise that the Government’s position on the devolution settlement has not changed. We disagree with Lord Thomas and with the Welsh Government, and do not think that justice should be devolved. Indeed, the many challenges brought by the coronavirus pandemic demonstrated in a number of areas that the settlement is working well.

[Alun Cairns]

The Minister has provided a clear response, and we understand that the Government’s view is that we should not devolve justice. Does he understand Labour’s point of view on the issue? It seems to me that two different messages are coming from Cardiff Bay and from the Opposition in Westminster.

[Mike Freer]

My right hon. Friend asked a very pertinent question and did not get a clear answer from the hon. Member for Cardiff North (Anna McMorrin). My understanding is that the official Opposition do not support the devolution of justice—that is what I took from her speech.

Let me go back to what happened during the coronavirus pandemic. The pandemic served to demonstrate that in a number of areas the settlement is working well. In fact, the justice system performed better in Wales than it did in England in several respects, and I will say more on that later. Among the key arguments made by those who support devolving justice to Wales is what they see as the principle that a holistic approach is required to ensure that policy objectives can be delivered effectively. Of course, we agree that policies on substance misuse, education, mental health and social welfare need to be aligned with measures to reduce reoffending and protect the public, which is the responsibility of Westminster, but the notion that justice must be devolved to achieve that is misplaced. The Ministry of Justice works closely with the Welsh Government to ensure that justice policies are aligned and that we take account of distinct Welsh needs.