Commission on Justice in Wales

Chris Philp Excerpts

Wednesday 22nd January 2020 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

It is a great pleasure to serve under your chairmanship, Mr Stringer. I add my congratulations to those from the shadow Minister for the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts)—I hope I pronounced that correctly—on securing today’s important debate. I thank the hon. Members for Rhondda (Chris Bryant), for Islwyn (Chris Evans) and for Cardiff North (Anna McMorrin) and the SNP Front-Bench spokesman, the hon. Member for East Lothin (Kenny MacAskill), for their eloquent contributions to today’s 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.

[Liz Saville Roberts]

At the same time, the probation service in Wales has been specifically set up to reflect the fact that education, health and housing are different in Wales in relation to probation. We have not been able to do justice to this report in the time we have had, but my one specific ask, if I may press the Minister, is when will his Department respond in full to the recommendations of this report? I understand that it has already been indicated that it will. When will that occur, and will the Department respond to all the recommendations in turn?

[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.