In depth: An uncertain outlook for devolved justice in Wales

‘As the devolved government in Cardiff continues to make new law, the current hotchpotch of devolved and reserved responsibilities pertaining to justice becomes ever harder to justify.’ I wrote that sentence 18 months ago in a profile of Mick Antoniw MS, then counsel general for Wales. Not a great deal has changed.

What has changed is the government at Westminster, which could prove a catalyst. Previous Conservative administrations dismissed proposals for further devolution of justice to Wales – most notably those contained in the landmark Thomas Commission report of 2019. Set up by the Welsh government and chaired by former lord chief justice Lord Thomas of Cwmgiedd, the commission recommended that Cardiff wrest full control of justice policy and funding from London.

Amid Tory opposition, only limited progress has been possible on the commission’s 78 recommendations – most notably, perhaps, a white paper proposing a unified and expanded system of tribunals. By a constitutional quirk, tribunals constitute one element of the justice system in Wales over which Cardiff does have autonomy.

Antoniw told me he was optimistic that a Labour government would prove more sympathetic to devolving justice. Yet the outlook does not appear especially encouraging, despite Labour’s crushing election win. Devolving justice to Wales was not in Labour’s manifesto; and during a pre-election debate in June, Jo Stevens, now secretary of state for Wales, branded such a move as ‘fiddling around with structures and systems’.

This is the context for a landmark discussion paper - From Caernarfon to Caerdydd: Reimagining Justice in Wales 2030 – published by the Law Society as the Gazette went to press.

As a cross-border institution, the Society must tread carefully. Not every solicitor in Wales wants wholesale devolution, and certainly not a separate jurisdiction. The political sensitivities are plain.

Nevertheless, the head of the Society’s Wales office, Jonathan Davies, expects devolution to become a ‘key policy matter’ for the Senedd over the next few years. ‘The Society believes that the part or full devolution of justice, if implemented and funded appropriately, offers significant potential opportunities to the people of Wales, alongside significant risk if not planned, funded, and implemented in a coherent and timely way,’ the discussion paper says.

But there are caveats. Any move toward a separate jurisdiction ‘carries great risk’ and is ruled out. ‘Distinct, not separate’, is the preferred language of the Society.

What must also be avoided is a ‘sudden devolutionary spasm’, the paper cautions. It sets out a number of tests that must be met before the Society’s ‘support [for devolution] in principle can become unqualified support’.

'Considerable progress has been made in Wales with the youth justice blueprint and the partnership with the youth boards and all the devolved social services'

Mick Antoniw MS, former counsel general for Wales

As one would expect, these tests include no impediments to solicitors practising across the divide. No one wants a ‘hard’ border. The ‘current single regulatory framework’ must also be preserved.

Another requirement is a ‘rigorous costing exercise’ of any further devolution measures, followed by ‘full and fair’ funding from the Treasury.

That looks like the toughest hurdle to clear. At the launch of the Thomas Commission report five years ago, I asked the former LCJ if his report’s recommendations had been costed. He conceded that they had not. The prospect of more money was one that ‘would be wonderful, but it’s never happened’.

Thomas insisted then that significant savings could be ploughed back into justice through the adoption of a ‘more coordinated and coherent’ approach to the provision of advice. Penal policy, meanwhile, on which the report dwelt at length, was a matter for politicians, he added.

Antoniw, who resigned as counsel general earlier this year, continues to bang the drum. Writing for Wales Online this week, he claimed the new UK Labour government is ‘committed to addressing these issues’.

He noted that ‘family and youth courts are often the frontline for tackling the consequences of many of our social problems: housing, drug and alcohol abuse, poverty, domestic and sexual violence, employment, health, child welfare and so on. Yet all these are devolved functions which have to operate within a centralised court system that is in most cases inadequately equipped to cope.

‘Considerable progress has been made in Wales with the youth justice blueprint and the partnership with the youth boards and all the devolved social services, but this now needs to be consolidated into a long-term devolved strategic plan. Too often, the overcentralised Ministry of Justice and Home Office cling on to an outdated model, incapable of reforming and improving the justice system centrally and reluctant to embrace reform.’

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