Devolution of Justice: Wales

Hywel Williams Excerpts

Tuesday 29th November 2022 Westminster Hall

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

I beg to move,

That this House has considered the potential merits of the devolution of justice to Wales.

Diolch yn fawr iawn, Cadeirydd—thank you very much, Mr Vickers; it is an honour to serve with you in the Chair. I am pleased to have secured this debate on the potential merits of the devolution of justice to Wales.

Wales, of course, has its own distinct legal history dating back to the laws of Hywel Dda, prior to the Acts of Union in the 16th century. In spite of the fact that many of us enjoy talking about Welsh history immensely, I am not here to make the case for devolution by looking into the past. I am here today because of the potential for a better future and because the case for devolution of justice is self-evident for those who care to look. It is a permanent question seeking an answer in the constitutional landscape of the United Kingdom, and I believe this to be irrefutable, whether the matter is approached from a Welsh viewpoint or from a Westminster viewpoint: that is an important point to make.

It has been more than eight years since the Silk commission recommended devolving police and youth justice to Wales, although those powers were not incorporated into the Wales Act 2017. It has been three years since the Thomas commission on justice in Wales published its report in October 2019, setting out a long-term vision for the future of justice in Wales. The Thomas commission produced 78 different recommendations on how Wales can have a justice system fit for the 21st century, the central one being the devolution of justice and policing and the creation of a separate Welsh legal jurisdiction. To quote the report directly,

“the people of Wales are being let down by the system in its current state. Major reform is needed to the justice system and to the current scheme of devolution.”

The weight of evidence is behind devolution. There is a growing consensus across civil society, academia, the Welsh legal profession and justice workers in the system that this needs to move ahead. That consensus is also to be found at the political level. All of Wales’s police and crime commissioners have said that the devolution of justice and policing is the next logical step. All the representatives of the justice unions who speak here and who also speak with the Senedd are engaged with how matters could be dealt with better if justice were devolved—that is the point of devolution: how the outcomes could be better. A majority of Members of the Senedd support the devolution of justice, as outlined in the Welsh Labour Government’s co-operation agreement with Plaid Cymru, which is a year old this week.

Despite having a Parliament and a Government, a legislature and an Executive, Wales is a nation without its own legal system and courts. For a nation with 22 years of policy making characterised by the values of social justice, equality and community strength, Wales can only stand by and watch the Westminster Government impose fundamentally different values through the arc of the criminal justice policy. Imagine if Wales had policy control over that arc, from crime to arrest—namely, policing—and prosecution, and then from sentencing to imprisonment and probation. Imagine that the Government of Wales had even the powers equivalent to those held—wait for it—by the Mayors of Greater London and Manchester. This is in stark contrast to Scotland and Northern Ireland, and it is unheard of internationally. When the Minister responds, could he tell us of any other examples of nations that have their own Executive and legislature but no judiciary? Does he honestly believe that this is the best way to structure an effective justice system?

The response by the UK Government to the Thomas commission was characterised by a combination of “Westminster knows best” and funding scaremongering. Here we had a former Lord Chief Justice in Lord John Thomas of Cwmgiedd, heading up an expert commission whose work across two years included a vast amount of evidence from across Wales. That extensive overview and analysis of justice in Wales was dismissed out of hand by the UK Government, who did not even bother to formally respond.

Not content with being told no by Westminster, we in Wales have instead been doing what we have had to do all along: building the institutional frameworks and capacity, piece by piece, so that we are ready for proper control and responsibility over justice. The unification of the Welsh tribunals, which put them on a proper footing, is in effect creating a nascent justice institution, which could in turn be the basis for the transfer of the courts to Wales. We are developing our capacity properly to scrutinise the operation of justice in Wales. At present, the Senedd’s Legislation, Justice and Constitution Committee—the clue is in the name—undertakes the work of three committees in one. We are also addressing that capacity through the expansion of the Senedd, which again is thanks to Plaid Cymru’s co-operation agreement with Welsh Labour.

[Hywel Williams (Arfon) (PC)]

On my right hon. Friend’s earlier point about tribunals, the seven administrative tribunals that operate in Wales are in a sense Welsh bodies, but control from Westminster—from Whitehall, actually—is very strong. That point was made when the tribunals were set up: Whitehall runs them and has the final responsibility.

[Liz Saville Roberts]

We will look at areas where there has been a little moving ahead on other aspects of the courts that have been proposed in Wales.

In that respect, I refer to a groundbreaking new book by Dr Robert Jones and Professor Richard Wyn Jones of Cardiff University, entitled “The Welsh Criminal Justice System: On the Jagged Edge”. It is a rigorous and thoughtful analysis of criminal justice in Wales. Indeed, it is the first of its kind, because the evidence is only now beginning to become available, and at present we have only a snapshot. I think that all will agree that, if we are looking for an evidence-based system, we do not want a snapshot: we must be able to track trends and developments over time. That is one of my key asks of the Minister, to which I hope he will be able to respond anon. The book presents a thorough overview of how justice operates in Wales, and shows why devolution is a vital step for aligning policy, values and legislative powers. As I have already said, that is the case for Northern Ireland and Scotland, and also to a degree for Greater Manchester and London. It is not possible to over-emphasise that inconsistency.

Justice in Wales is currently controlled at Westminster, but the Senedd controls key devolved services that are just as important for the delivery of justice. That has created what Lord Thomas originally called the “jagged edge”—a jagged edge of intersecting competences and responsibilities. That results in serious disadvantages, which include financial and opportunity costs; a lack of coherent, joined-up policy making; and an overly complex system that leads to a lack of understanding of how justice operates in Wales.

The Cardiff University book lays out how outcomes in Wales are particularly poor. When English and Welsh data are disaggregated, we see that Wales performs even worse than England, which is one of the worst performers in Europe. The figure that we will keep coming back to is imprisonment. England and Wales have the highest imprisonment rates in Europe. Because of the disaggregated data, we now know that Wales has the highest imprisonment rate in western Europe. That fuels a cycle of poverty, as well as health and mental health problems. Wales has higher violent crime and conviction rates than England. Black people are six times more likely to be in prison than their white counterparts. Nearly half of Welsh children who are imprisoned are detained in England, far from their homes and family support, and court closures have restricted access to justice across whole swathes of rural Wales. The lack of coherent policy making is one of the key features of the jagged edge, and it is the people in the system—and the communities from which they come and to which they return—who lose out.

First, let us take the case of women in the justice system in Wales. Welsh Women’s Aid notes that the women in the prisoner population, and those in contact with the police and other related services, are far more likely than men to have additional support needs such as mental health diagnoses, a history of drug and alcohol abuse, and homelessness, or to have experienced violence, domestic abuse and/or sexual violence. Importantly, the Welsh Government, with the backing of the Senedd, have a specific policy to reduce the number of women entering custody, given their vulnerability. That is a piece of policy extant in Wales from our Senedd and our Government. However, the aim comes crashing down against the reality of how the criminal justice system operates in Wales and the differing Westminster policy in relation to putting more people into prison.

There are no women’s prisons in Wales. Welsh women are sent most often to either His Majesty’s Prison Eastwood Park in Gloucestershire or HMP Styal in east Cheshire, which are tens or hundreds of miles away from their support networks, and getting to these prisons, particularly by public transport, is extremely difficult. Given that roughly 50% of women prisoners are also mothers, the effect of such distance on the mental health of those women and their children, and on the outcomes for the children, must not be underestimated.

--- Later in debate ---

[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.

[Hywel Williams]

My right hon. Friend is being very generous and I will pipe down after this, as I hope to speak in the debate. Another small example is when we were campaigning for a prison for north Wales some years ago. We almost got a prison, which would have been a community facility, for the 600 or so men from north Wales who are imprisoned. We also campaigned for units for women and for young people who are held, contrary to the regulations, further than 50 miles away from their homes. What we actually got from Westminster was a 2,000-man super-prison in Wrexham, which does not serve the needs of local people.

[Liz Saville Roberts]

Again, I will return to that. This is not just a matter of serving the needs of Wales. Sending thousands of prisoners miles away from home—men or women—does not serve the vast majority of those prisoners well either. If we want a joined-up magic connection with housing, work and maintaining kinship, family and friendship connections, which we know are the routes to successful rehabilitation, we should not send prisoners hundreds of miles away from where they will return, because those links will not be made, be they back home in Wales or in communities in England.

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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.

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[Hywel Williams (Arfon) (PC)]

It is a pleasure to serve under your chairmanship, Mr Vickers. My right hon. Friend the Member for Dwyfor Meirionnydd (Liz Saville Roberts) has made a forceful and detailed argument. I support her questions, and I hope we get some answers.

Justice sticks out like a sore thumb as one of Westminster’s biggest devolution failures. Despite later devolution, and the change to a Scottish-style system, London has hung on to justice. Our Senedd now passes laws but it does not control the justice system, the courts or the prisons. Nor does it control the police, although between them local authorities and the Welsh Government provide about 60% of the funding for the police. Again, they have responsibility without power. As my right hon. Friend pointed out, our Senedd is a legislature without its own jurisdiction—the only one I know of in the world.

A lot of public services that make the justice system work are the responsibility of our Government in Cardiff— again, responsibility without power. Even if our public policy changes because of the decisions of our democratically elected Government in Cardiff, that need not follow through to justice. Health, mental health, education, housing, social services, the economy and employment might all improve in one direction, but justice need not change. Those are just some of the services we need to get the criminal justice system to work properly and to ensure that as few people as possible break the law and end up in prison. If they do offend, such services are crucial in getting them back on the straight and narrow. There is a huge hole in the middle of our justice system, which might be one reason why the system in Wales is clearly worse than anywhere else in Great Britain.

My right hon. Friend referred to “The Welsh Criminal Justice System: On the Jagged Edge” by Jones and Wyn Jones, which is an excellent publication that I would recommend to Conservative Back Benchers. Eastwood Park has prisoners from Wales and from England. According to Jones and Wyn Jones, the rate of recidivism—further offending—by the English prisoners is one in 10, but for the Welsh prisoners it is nine in 10. That hugely stark fact points to the problem. I visited Eastwood Park and talked to a prisoner from Aberystwyth who told me she was not going to have any visits, because the hike from Aberystwyth down to Eastwood Park was too much for her young family. That is the sort of system that we have.

I want briefly to note an historical example of the discontinuity between what Wales wants and what is public policy in Wales, and what we actually get. I hope Members will forgive me for going back as far as 2007, when I tried—as I did later under a Tory Government—to introduce a small but significant reform to the jury system in Wales, to fit in with how things really are in terms of the Welsh language and to allow for bilingual juries.

The Juries Act 1974 is clear that juries should understand the evidence as directly as possible. If members of the jury do not understand English, the judge will bar them. There is no such qualification for Welsh. A matter of principle is at stake. The principle of a language qualification for juries is already conceded for English. However, in Wales, if a young person or a child is giving evidence in Welsh, there is no guarantee that the jury will understand the evidence as directly as possible, as would be the case if the child was speaking English. A wrongdoer might get off or an innocent person might be found guilty, not on the evidence but on how it was heard. My private Member’s Bill would have brought some sense to that system, and I recommend it to the Minister.

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[Richard Thomson (Gordon) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Vickers. I congratulate the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) not just on securing this important debate, but on finding a topic that manages to unite not just Plaid Cymru and the SNP, but also the SNP, the Alba party and the Democratic Unionist party—

[Hywel Williams]

And Labour.

[Richard Thomson]

And the Labour party, indeed. That is quite a set of Venn diagrams to pull together.

Before I get to my in-depth remarks, I will address the commonality of the remarks made by the right hon. Member for Vale of Glamorgan (Alun Cairns) and the hon. Member for Aberconwy (Robin Millar). We heard that the debate was on a rarefied topic—the preserve of politicians, academics and the political elite—and that it was all airy-fairy, fey and far removed from the doorsteps of the communities they represent. Obviously, I do not spend a huge amount of time canvassing in either of their constituencies, but I would venture to say that, just like my constituents, theirs are probably very concerned with justice matters and with outcomes.

If this debate is about anything, it is surely about how the best outcomes can be achieved and how the current set-ups, boundaries and the jagged edge, of which we have heard so much, militates against that. This morning, we have heard from a former Scottish Cabinet Secretary for Justice, the hon. Member for East Lothian (Kenny MacAskill), about the benefits that come not just from the separate and distinct nature of the Scottish justice system, but from how the powers of devolution have been used to adapt to particular demands in order to achieve those outcomes, whether those were improved road safety through reducing the drink-drive limit or tackling the menace of air weapons before they were licensed. I could even speak about how the problem of endemic knife crime in west-central Scotland was tackled by adopting a public health approach, which is now being followed in certain measures by the authorities in London. That would not have been possible were it not for the integration not just between the healthcare system and the social services ecosystem, but between the justice system and the policing system.