Wales should have full control of its justice system – with powers to run policing, prisons and appoint its own judges, says an independent commission.
People in Wales are “let down by the system in its current state”, it found.
As well as switching funding, including for legal aid, it believes laws applying in Wales should be treated as being distinct from English law.
That would mean devolving powers from the Ministry of Justice (MoJ), but it has poured cold water on the idea.
The MoJ believes it would be too costly and lead to significant duplication.
“It is our belief that a single jurisdiction is the most effective way to deliver justice across England and Wales,” said a spokesman.
“We welcome this important and thorough report and will review its content carefully.”
The commission has been chaired by Lord John Thomas of Cwmgiedd who, as former Lord Chief Justice, was once the most senior judge in England and Wales.
Over nearly two years, it took dozens of submissions, held consultation events from Rhyl to Butetown, and has produced 78 different recommendations.
It is set against a background of 20 years of devolution, with Welsh ministers creating 6,000 different regulations, while 41 acts have been passed by the Welsh assembly in the last seven years alone.
But there is a long list of areas which Wales is not responsible for – when laid down in law, this runs to 44 pages – from policing to dangerous dogs.
It is felt Wales needs parity with Scotland and Northern Ireland, as it grows, with the system as it stands now too complicated and inefficient.
“The way that responsibilities are split between Westminster and Cardiff has created pointless complexity, confusion and incoherence in justice and policing in Wales,” said Lord Thomas.
What is wrong with the justice system in Wales? 10 things
- “Significant cuts” to legal aid made in 2012 have hit Wales hard, leading to “advice deserts” in rural and Valleys areas where people struggle to receive legal support
- Increasing numbers of people represent themselves in courts
- Coordination between devolved and non-devolved bodies is overly complex and expensive
- Victims need to be included more, while the approach to those with mental health issues is not properly addressed
- Significantly greater spending is now on prisons rather than crime reduction – and Wales’ prison population is one of the highest in western Europe
- There is a lack of facilities for women offenders in Wales and black, Asian and minority ethnic (BAME) people are over-represented as offenders.
- A “complex division” between UK and Welsh government responsibilities in family justice, with “significant further action” needed to tackle increase in children going into care
- People with civil disputes are faced with high fees which deter many from pursuing a court case – while there is a lack of coordination between different organisations able to help resolve conflicts
- Court and tribunal closures have left people in many parts of rural and post-industrial Wales facing long and difficult journeys, while advantages of digital technology have not yet been fully realised
- Too many gaps in Welsh language provision and too much dependence on the goodwill of individuals.
The wide-ranging report says policies should reduce the number of people going to prison, with a greater emphasis on problem solving.
But it also calls for sufficient funding to follow the powers, saying Wales has been significantly affected by UK government cuts, with the Welsh Government plugging almost 40% of the gap created.
“This position is unsustainable when the Welsh Government has so little say in justice policy and overall spending,” says the commission.
It is critical of the lack of accountability and how the system’s complexity wastes resources.
The nine-person commission – which includes lawyers, academics and a former chief constable – also criticises a failure to develop a coherent set of overall policies and the lack of innovation.
£370spending per person
£723mUK govt spending, a real terms drop by a third since 2009-10
£14mestimated cost of 200 staff if justice policy devolved
Source: Justice Commission, October 2019
What does it recommend?
Some key suggestions:
- Devolution of justice – similar to the Northern Ireland Assembly and the Scottish Parliament – and accompanied by a full transfer of financial resources
- A new Justice Department in the Welsh Government led by a cabinet minister
- Create a “law of Wales”, distinct to the law of England and Wales
- Wales could also gets its own high court and court of appeal, although lawyers could still work across England and Wales. There would be a Welsh judge at the Supreme Court
- The age of criminal responsibility should be raised from 10 to at least 12 years old in Wales – similar to Scotland. Although the youth justice system is generally doing well, the commission says there are better ways of dealing with behaviour than criminalising children
- Alternatives to prison should be developed “as soon as possible”
- Policing and crime reduction policy, including drug abuse and mental health-related issues, should be devolved to chime with already devolved Welsh health, education and social policies
- Problem-solving courts should be established, like five being trialled in Northern Ireland
- The law relating to children and family justice in Wales should be brought together in one coherent legal system, while the overarching aim should be the reduction in numbers of children taken into care
- Legal aid should be devolved and funding for it – and advice by charities – should be brought under a single fund and an independent body
- All justice bodies should be subject to the 2011 Welsh Language Measure, while all coroner services should be available in Welsh.
Would changes to delivering legal aid help?
Speakeasy Law Centre in Cardiff is increasingly reliant on charitable grants and donations for its work, providing free legal support for people who are struggling with debt or need help with appeals for benefit problems.
Its legal aid funding has dropped from 70% to 20% of its income.
“It’s difficult to provide a continuous and effective service,” said solicitor Warren Palmer.
But he said Cardiff was better placed than more rural parts of Wales.
“I’m hoping the commission recognises that investment in advice is worthwhile at an early stage because of the huge impact on mental health,” he said. “We can give reassurance when people receive a bailiff letter – that we can deal with it and stop matters escalating. There’s also evidence that by not nipping it in the bud, it ends up costing more.”
What could be done now?
The report also includes a damning assessment of the duplication and waste of resources with the number of boards and committees across Wales. It calls for mergers where appropriate – aware that its remit does not stretch to assessing the need for fewer local councils in Wales.
Over the years, Wales has been developing policies to make change where it can. But in the complex devolved arrangement, that’s created a messy picture. Spreading like a weed to fill in the gaps, the picture is tangled, overlapping and complex.
The commission believes there is also much that could be done now to simplify that picture.
What does it not recommend?
It wants policing devolved – about a third of funding for Welsh forces currently comes from a Home Office grant – but believes the idea of a single Welsh police force should be one to consider in future.
Immigration, national security, money laundering, firearms and misuse of drugs are not included – and are not devolved to Scotland or Northern Ireland either.
A women’s prison for Wales – the commission would like a commitment instead to a number of women’s centres offering treatment, training and support as alternatives to custody.