Stephen Clear, Bangor University and Chaynee Hodgetts, Queen Mary University of London
October 11, 2024
Devolution is “a process, not an event”, according to the then-secretary of state for Wales, Ron Davies, in 1997. But it is unclear what may come next for Wales in that process under the new UK Labour government, despite the same party now being in charge in both London and Cardiff.
One ongoing debate among politicians and experts for several years has been whether Westminster should and will devolve more powers to Wales, including justice and policing.
It wasn’t until the passing of the Government of Wales Act 1998 that the then National Assembly was established. It allowed Wales to make decisions over issues such as education, housing and agriculture. Further primary law-making powers were subsequently granted to the now Senedd (Welsh parliament).
But Wales doesn’t have control over all matters and some are reserved for the UK parliament. A number of these are consistent across all UK nations, including fiscal policy, foreign affairs, nuclear policy and national security. But others are different for Wales when compared to Scotland and Northern Ireland.
One of the most obvious examples is in the area of justice and policing. Unlike Scotland and Northern Ireland, Wales is not a separate legal jurisdiction with its own system of law, policing and courts. While there are increasing areas of divergence between England and Wales, technically speaking, Wales is part of a single jurisdiction with England due to decisions made during Henry VIII’s reign in the 16th century.
The issue of devolving justice and policing has cropped up consistently over the past 25 years. It has been the subject of a variety of debates in the Senedd, Westminster and in the media. It has also been analysed by a number of official reports and independent or cross-party commissions.
In 2011, the Silk commission was established by the UK government to explore the issue. In its 2014 report, it recommended devolving policing and youth justice to Wales by 2017. That never happened.
The Thomas commission, set up by the Welsh government in 2019, also recommended devolving justice to Wales, including youth justice and policing. Earlier this year, the independent commission on the constitutional future of Wales called on the UK government to agree to the devolution of responsibility for justice and policing to the Senedd and Welsh government.
In 2023, Keir Starmer said that a Labour government would introduce a “take back control bill”, to devolve new powers to communities from Westminster. Those intentions were echoed in Labour’s election manifesto ahead of July’s general election.
But the issue of devolving justice to Wales was absent from Labour’s manifesto. And in an interview in June, the now-secretary of state for Wales Jo Stevens described such a move as “fiddling around with structures and systems”. It is therefore unclear whether devolution to regions of England will take place in parallel to further devolution to Wales and the other nations.
And while this issue may not be at the forefront of UK Labour policy, it is an ongoing commitment of Welsh Labour. The latter commissioned even further research in August into the devolution of justice.
What are some of the potential challenges?
One significant issue is the age of criminal responsibility, currently set at ten in England and Wales. The Thomas commission recommended raising this to 12, aligning Wales with Scotland and the UN Convention on the Rights of the Child.
But this raises logistical questions. For example, what would happen when a case crosses borders or involves children just above or below the age threshold? These practical challenges need to be addressed if justice is to be devolved smoothly.
The Thomas Commission also laid out detailed proposals for reforms to youth justice, prisons and probation services. The Welsh youth courts have already started implementing a more preventive and restorative approach, but a jurisdictional overlap with England has slowed progress. While children’s services are devolved, youth justice remains under UK government control.
Issues like transport to courts, funding and jurisdictional boundaries need careful consideration too. For example, how would authorities determine whether a crime committed near the Wales-England border falls under Welsh or English law?
Of course, this is an issue which already exists between England and Scotland, and there are complex rules in place. Dependent upon the nature and circumstances of the crime, “jurisdiction” is typically dependent on where it was first initiated. In turn, further challenges arise surrounding police force cooperation, as well as mechanisms for sharing different types of evidence. There are also legally-protected agreements regarding powers to arrest people in each other’s territories.
Ironing out these types of issues is particularly important in respect of female offenders, as Wales has made progress in providing better support for them.
Disparities in legal expertise may also become more of a challenge. Legal experts have noted that as Welsh laws become more distinct, judges in England may lack the relevant expertise to handle Welsh cases. This concern has already arisen in Welsh tribunals, where appeals are sometimes directed to England’s Upper Tribunal, raising doubts about how well English judges can handle increasingly Wales-specific laws.
Cooperation
While these issues are very real, they shouldn’t block progress. With cooperation between Cardiff and Westminster, the devolution of justice could happen without major disruption. Instead of having endless debates and reviews, time and resources could be better spent acting on existing expert recommendations.
For instance, both governments could agree on a ten-year timeline – as recommended by the independent commission – to devolve justice, starting with policing. It’s an area which already has strong ties to devolved services at the local level. Youth justice and probation could then follow.
Despite the potential challenges, the new Labour UK government has a chance to bring about meaningful change. Devolving justice may take time, but it could bring Wales closer to achieving the legal autonomy many believe it deserves.
Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor University and Chaynee Hodgetts, Barrister & Honorary Lecturer in Emergency Medical Law, Queen Mary University of London
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This article is republished from The Conversation under a Creative Commons license. Read the original article.