Commission on Justice in Wales

Chris Bryant Excerpts

Wednesday 22nd January 2020 Westminster Hall

[Chris Bryant (Rhondda) (Lab)]

I will keep my comments short because there is not a great deal of time. I congratulate the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) on securing the debate. I could hotly dispute every comment she made about the history of a thousand years ago, but we will have to reserve that for some other time as now is not the moment.

When there is a proposal such as the one we are debating, there is a fundamental question, which would make a significant difference, that we always must ask ourselves: is there a problem that needs fixing? I think all of us on the Labour Benches would argue that there is a problem in the delivery of justice in Wales, not least the dramatic changes to legal aid funding in Wales. Of course, the same is true across the whole of the United Kingdom, and we have all been angered by it. We have seen people unable to secure justice for themselves. It feels as if there is one law in the land for the rich and another for those who cannot afford to pay for expensive lawyers.

Many of us would say that it would be very difficult for a constituent who ends up in prison to have to serve most of their time a long way from home. It makes it far more difficult for them to return to their community and to get the support they need not to go back to a life of crime. There is clear evidence that that is the case.

There is less access to justice now because many of the courts have closed—certainly, that is true in the Rhondda. The evidence is that more people are refusing to turn up for court hearings, and consequently justice is not being well served.

There are problems with probation. I do not need to go into the nonsense of the privatisation of the probation service at length. Everyone knows that the Opposition parties were all opposed to that. I visited Cardiff prison and I know there are still significant problems with overcrowding. The staff are trying to do a good job, but they simply do not have enough personnel. My hon. Friend the Member for Torfaen (Nick Thomas-Symonds) rightly said that there has been a dramatic—40%—cut in the Ministry of Justice’s budget, which has had very clear effects on the delivery of justice to my constituents and to everyone in Wales.

My question in relation to the proposal on the table is: does devolution solve any of those problems? I am afraid it does not. If anything, I am terrified that the Government might bite off the right hon. Lady’s hand and say, “Yes, devolve it,” because I know what happens. They devolve the power and the responsibility so that they can devolve the blame when the service is not delivered properly, because they do not devolve the right amount of funding to go with it. I agree that legal aid is underfunded in Wales, but if it is devolved to Wales and no additional funds are provided, Wales will have to find those additional funds somewhere else. That will be the health budget, the education budget or the local authority budget. I am not in favour of that.

I argue here in Westminster that we should fund legal aid properly, and that we should ensure there are proper facilities across the whole of the country so that people do not have to serve their time in prison a long way from home.

[Jonathan Edwards]

The hon. Gentleman has long-standing views on these issues, but he knows that the devolving of public policy and the funding that comes with it is determined by the Barnett formula and Barnett consequentials. If policing were devolved to Wales, as it is in Scotland and Northern Ireland, there would be a £20 million per annum bonanza for the Welsh Government to invest in safer communities. Surely, that is a good thing.

[Chris Bryant]

Actually, the police settlement figures that are out today make it pretty clear that that would not do Wales any favours. We would simply be robbing the police budget to pay for the legal aid budget. I am not sure that solves the problem.

The hon. Gentleman says that my historical views are well known, but I am not sure that he does know my views on this subject, because I have tried to keep them to myself. To be honest, I am agnostic about the devolution of justice and policing, but I am not prepared to have the Welsh Assembly take responsibility for an area of policy if the money does not go with it. That would be cutting off your nose to spite your face.

[Liz Saville Roberts]

Would the hon. Gentleman give way?

[Chris Bryant]

If the right hon. Lady does not mind, other Members want to speak and she spoke for nearly 30 minutes, so I will not give way. I think she gets time at the end to wind up the debate, so if she wants to have a go at me, she can do so then.

There are enormous dangers. The right hon. Lady raised specific issues about children in care. I am not sure that there is a higher number of children in care in Wales because the matter is not devolved. I suspect that is much more related to poverty and deprivation, at historic levels in some of the valleys communities that I and others represent. I want to see causation, not just correlation. That is a fundamental principle in all our policy making.

During the general election, not a single person on the doorstep raised any of these matters. In fact, in all my time as an MP—18 years—I have never known anybody on the doorstep in the Rhondda raise the issue of devolution, except sometimes to say that the Welsh Assembly should be dismantled or done away with. I am in favour of devolution. It is terrible when a higher power arrogates to itself matters that should be decided at a much more local level. I am in favour of devolution. However, I do not think we should spend all our time in Welsh politics picking at the constitutional settlement. We should be trying to deliver better outcomes for our constituents. We should be trying to make sure that the money that is spent in Wales is well-spent. We should be trying to improve the national health service, the education service and all the rest of it. Frankly, I think the constitution can wait for—

[Ben Lake (Ceredigion) (PC)]

Will the hon. Gentleman give way?

[Chris Bryant]

Go on, then. It was my last word!

[Ben Lake]

I am very grateful to the hon. Gentleman; I just thought I would get a word in edgeways before he resumes his seat. He is right to say that the money the Welsh Government has to spend on health, education and other priorities should be spent on health, education and other priorities, but does he acknowledge the Welsh Government are currently spending up to £141 million per year supplementing elements of what should be central Government responsibilities because of decisions made here? I agree that it would be good to have all that money going to health and education, but that is not happening, so it would be better for us to have the responsibility, because we are paying for it as well.

[Chris Bryant]

I agree with that. It doubles my anxiety about the dangerous route that we will go down if we have more things devolved to Wales without the money going with them. I am absolutely certain that the only answer is a Labour Government in Westminster as well as a Labour Government in Cardiff. On that note, Mr Stringer, I resume my seat.

--- Later in debate ---

[Chris Bryant]

You pronounced Cardiff North right.

[Chris Philp]

That is good. Clearly, I need some lessons in Welsh pronunciation. The right hon. Member who moved today’s motion made a case for what essentially amounts to the full devolution of justice functions to Wales in line with the recommendations of the report that Lord Thomas recently published. I respectfully disagree with her conclusion that the wholesale devolution of justice to Wales would be in the interests of Wales for, broadly speaking, two or three different reasons.

I will start with the right hon. Lady’s argument that there should be congruence between the Parliament of Wales and the justice jurisdiction of Wales so that the justice system matches the laws. That argument—to avoid the “jagged edge” that Lord Thomas refers to in his report—is not wholly valid, because many or most laws that apply in Wales are reserved matters that have been legislated on in this Parliament. In fact, if we look at the laws that have been passed in the 11 years since 2008, the Welsh Parliament has passed 62 new laws and this Parliament has passed 600, the vast majority of which also apply to Wales. Looking at the law on reserved matters, legal principles such as criminal responsibility, incapacity, mental elements of offences, criminal liability, sentencing, the law relating to homicide, sexual offences and offences against the person—the very fabric of the legal system—are all reserved matters where England and Wales law applies.

Devolving justice in the context of a body of law where the majority of it applies to England and Wales would actually exacerbate or worsen the jagged edge problem the right hon. Lady referred to, because it would then apply to these reserved matters, which are far larger in number than the matters that have been legislated for separately at the Welsh level. Indeed, it would be further exacerbated because the Thomas report, interestingly, does not recommend that the legal profession, its regulation and its qualifications be separated, but instead that they remain the same. If we were to devolve justice to Wales, we would have a further incongruity in that we would have a single legal profession with the same qualifications across two different systems. That would be a further exacerbating jagged edge.

Some Members speaking today have referred to the interface between justice and other devolved matters, in particular education and health. I put the question to a senior official working in the Ministry of Justice’s Welsh department who deals with day-to-day justice matters. Their view was that whether justice was devolved or not would make no real difference to the interface between justice and education and health. Whether education and health were being run in Wales and talking to 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.

[Chris Philp]

I was going to come to that point at the very end, but I will answer it now, since the right hon. Lady has raised it. This report was commissioned by the Welsh Government, by the previous First Minister of Wales. It was not commissioned by the UK Government, so there is not an intention to produce a full and formal response to the Thomas report.

However, we are of course going to discuss in detail with the Welsh Government in Cardiff the issues that it raises, to see where we can constructively improve our working relationships across some of them. The right hon. Lady has touched on a couple of those already. We want to improve the level of co-operation we have with the Welsh Government. We want to ensure that, where there is joint working and an interface with, for example, the health system, which many Members have mentioned, that interface works as well as it can, and that we are co-operating and reflecting some of the unique circumstances in Wales. Those conversations will certainly happen, and we will approach them with a constructive and an open mind.

As I said a moment ago, however, I am afraid we do not agree with the conclusion that we should wholly devolve justice and create a Welsh jurisdiction. One reason for that is the second point I was about to come on to before the intervention: cost. The Thomas report does not talk about the cost at all; perhaps the reason is that there is a very significant cost.

The Silk commission, which reported a few years ago—I think in 2014—did cost the establishment of a separate Welsh jurisdiction. It estimated, adjusting for changes that have happened since, that the extra incremental cost of creating a separate jurisdiction would be about £100 million a year. That is £100 million that could be spent on more probation officers, more police and all the things we have been talking about, and we do not feel that the imposition of that extra cost is at all justified.

For example, we would have to replicate the Ministry of Justice’s functions at the Welsh level. Wales does not have a women’s prison, which itself is an issue, or a category A prison. All those issues would 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, it would be extremely expensive. We do not believe that that cost of £100 million a year can be justified.

Thirdly, and perhaps unusually, I concur quite strongly with some of the analysis offered by the hon. Member for Rhondda, who asked us to concentrate on outcomes and how our systems work in practice, and on improving those rather than endlessly talking about process and arguing about where powers get exercised. In many ways, it is slightly sterile to argue over who holds the pen and exactly where a power is exercised. Our collective energy, ingenuity, creativity and everything else are better directed at trying to improve the services that are being delivered, so I embrace the point that he made.

[Chris Bryant]

While the Minister is embracing my views, I wonder whether he will look at the issue that has been experienced in Cardiff jail, where there has been a really good programme screening new prisoners arriving in the prison for brain injury. That is an area where there is a clear overlap between the health service, which will be working with the individuals, and the Ministry of Justice. I know that that programme has been extended, but I wonder whether we could keep it running on a permanent basis. It is a simple fact that if people do not get the proper neuro-rehabilitation for a brain injury, the likelihood is that they will end up reoffending.

[Chris Philp]

I am glad the hon. Gentleman mentions Cardiff Prison, which had a fairly positive inspector’s report last July. The programme that he is describing is not one I am hugely familiar with, because my hon. and learned Friend the Minister of State is the Prisons Minister. However, it sounds like an extremely worthwhile programme. I know that, in general, the Government are keen to encourage closer work between the justice system and the health service, in order to treat health conditions where they exist, and that programme sounds exactly like the kind of programme that should be continued. I undertake to raise it with my hon. and learned Friend, and I will urge her to consider extending the pilot indefinitely, because it sounds like exactly the kind of thing we should be doing. I will make representations along those lines.

Devolution in itself is no panacea; it does not automatically solve problems. For example, that has obviously been well documented in education, where per capita spending in Wales is much higher than in England, that educational outcomes in Wales are none the less worse than in England. So the idea that devolving something somehow automatically makes it better does not necessarily hold up.

I turn now to the tragic death of Conner Marshall, which was mentioned earlier. Of course, we extend our heartfelt condolences to his family. There were failings in the probation service, which have already been referred to. Therefore, it is right and appropriate that Wales was the first part of England and Wales to have the community rehabilitation companies wound down and wholly replaced by the National Probation Service. It is very welcome that Wales has seen that happen first. Clearly, the Conner Marshall case underlines why that move was so important, and I am glad that we made it.

More generally on the question of resources in the probation system, substantially more money will go into the probation system in the next financial year. Across England and Wales, we will also recruit 800 more probation officers, many of whom, of course, will go to Wales.

The issue of imprisonment rates was raised. The rate of imprisonment for offenders in Wales is very similar to that in England. It is fractionally higher in Wales—it is about 6.5% in England and 6.85% in Wales. So, as I say, the rates are very similar.

Regarding sentencing policy and the implications for the prison population, the Government’s approach is that we want to see very serious offenders, including terrorist offenders, receiving longer sentences and serving more of those sentences in prison. In fact, that is the purpose of the statutory instrument being laid today, which moves back the automatic release point for standard determinate sentences for serious sexual and violent offences that qualify for a life sentence, and where the sentence is over seven years, from halfway to two-thirds of the way through the sentence.

We want to see the most serious criminals serving longer sentences and serving them in prison. However, for less serious offences, and in particular where there is a health problem associated with such offenders, which the hon. Member for Islwyn mentioned earlier, I want—as the Minister with responsibility for sentencing—to see a greater emphasis on treatment, which is the point the hon. Member for Rhondda made a moment ago. I would like to see more community sentence treatment requirement orders being made, so that people who have a mental health problem, a drug addiction problem or an alcohol addiction problem receive treatment for that health problem, rather than serving a short custodial sentence, because the evidence is that short custodial sentences are not very effective.

We will address that area through the sentencing review and the sentencing White Paper, which we will publish a little later this year, and then through the sentencing Bill, which will be introduced subsequently. It is an area where there is more work that we can do to treat the causes of offending, particularly where they are health-related, rather than imposing short custodial sentences.

The issue of court closures was raised. As in England, there have been court closures in Wales, as we try to run the court system more efficiently and effectively. The utilisation of the courts in Wales prior to the start of this programme, which was about nine years ago, was 54%. That is extremely low. The utilisation rate in Wales is now 67%, which is clearly higher.

Regarding attendance in court, which was mentioned, there is no evidence that the rate of attendance at court by defendants or witnesses has declined as a consequence of the programme. In fact, in terms of disposing of cases, in Welsh magistrates courts—where the vast majority of criminal cases in Wales are heard—78% of cases are dealt with in less than six weeks. The equivalent figure for England is 68%, so the Welsh magistrates courts are 10% more effective at quickly dealing with cases that come before them than their English equivalents.

Even after the closure programme that was referred to, 97% of the Welsh population can get to their nearest magistrates court in less than two hours, which is comparable to the equivalent figure in England. The digitisation process is well under way to allow people to access court services digitally. Making civil money claims, probate applications, uncontested divorce applications and entering minor pleas can now all be done online.

We do not concur with the Thomas report’s principal conclusion that justice should be wholly devolved, but we will work closely with the Welsh Government to ensure justice policies are aligned and to take into consideration distinct Welsh needs. For example, the recent transfer of probation services in Wales to the National Probation Service is a clear example of distinct justice policy in Wales, which can be achieved under the current settlement. Joint Ministry of Justice and 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. Hon. 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, the legal profession, legal regulators, operational deliver arms, and 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. We are taking those recommendations forward.

The Welsh Government’s decision to commission Lord Thomas to undertake a review was founded on their belief that there was

“unfinished business from the Silk Commission”.

On the contrary, the decision by the Silk commission that Wales should continue to be part of the single jurisdiction 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.

[Liz Saville Roberts]

I welcome certain of the Minister’s comments, particularly his commitment to close working. However, I note that, although he referred to the sentencing review, the health intervention is, in essence, devolved in Wales. In that respect, if there is additional expectation from Westminster, I can only presume that the funding to enable that will follow.

I also mentioned the serious violence Bill. Again, there is an opportunity to reflect the structures that exist in Wales to ensure that it is better proceeded with in Wales, but that was not referred to. Even when I was working on the Domestic Abuse Bill, the fact that there are different structures in Wales was not thought about; it was not even an afterthought—it was not remembered. That is a weakness in governance, and goes back to how these things affect the people of Wales and the quality of the services that they receive.

Of course, the current joint work is not done with transparency, and we do not effectively have the means to compare what is for England and Wales in its entirety with what is happening in Wales. I hope that there will be a commitment to continue with the crime survey for England and Wales, so that we can have a proper picture and talk about crime not in the abstract, but as it is experienced by real people in the real communities of Wales, to make that comparison properly. This report has endeavoured to emphasise that justice is not an island; it is not isolated from the services that support the victim on the one hand or that punish and rehabilitate the offender on the other hand.

I will conclude with that old “Encyclopaedia Britannica” trope: “For Wales, see England”. The nagging question for this Government is whether, when it comes to Wales, they see only England. Diolch yn fawr.

[Chris Bryant]

On a point of order, Mr Stringer. I am sorry to be a pain, but some of us were a bit confused about the timing this afternoon. Obviously, we have had votes and so on, which have interfered with the system, and I know that the second half of the day is three hours, but I wonder whether, in future, when there has been an afternoon such as this, there might be a means of making the House generally aware of when each of the new debates in Westminster Hall is going to start.

[Graham Stringer (in the Chair)]

Thank you for that point of order. As Chair, I probably should have made it clear at the start of the debate that the time gained on the first hour-and-a-half debate was carried over. I apologise to hon. Members for not having made that clear.

Question put and agreed to.

Resolved,

That this House has considered the report of the Commission on Justice in Wales.