Justice Minister Chris Philp poured cold water on calls for a separate Welsh jurisdiction in a Westminster Hall debate last week (22 January) on the report from The Commission on Justice in Wales.
The report, published in October last year, said "justice should be determined and delivered in Wales so that it aligns with its distinct and developing social, health and education policy and services and the growing body of Welsh law".
It warned that alignment could not happen at present as justice remained controlled by Westminster and so was not integrated with other policy making as it was in other parts of the UK.
The report’s recommendations included the establishment of a new justice department in the Welsh Government led by a cabinet minister, and a ‘law of Wales’, distinct from that of England and Wales, with Wales’ own High Court and Court of Appeal, and a Welsh judge at the Supreme Court.
But speaking in a debate secured by Plaid Cymru MP Liz Saville Roberts, the minister said he disagreed with her conclusion that the wholesale devolution of justice to Wales would be in the interests of Wales.
He said the 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 – to avoid the “jagged edge” that former Lord Chief Justice Lord Thomas referred to in the Commission’s report – was “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.”
Philp added: “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.”
He said: “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.”
Having consulted a "senior official working in the Ministry of Justice's Welsh department" concerning the difficulties that might arise in the interface between justice and other devolved matters, the Justice Minister said that "their view was that whether justice was devolved or not would make no real difference to the interface between justice and education and health."
He added: "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."
Philp meanwhile claimed that creating a Welsh jurisdiction would involve "a very significant cost".
Replicating the Ministry of Justice's functions at the Welsh level would be costly given the need to build a Welsh women’s prison and a Category A prison, prisons that Wales currently lacks. He also noted that the MOJ is in the process of upgrading its IT systems.
He drew attention to the 2014 Silk Commission report, saying that the report’s "estimate, adjusting for changes that have happened since, that the extra incremental cost of creating a separate jurisdiction would be about £100m a year."
He added: “We do not believe that that cost of £100m a year can be justified."
Philp made a final point that the government should concentrate on outcomes and improving the system, saying that he found it "slightly sterile to argue over who holds the pen and exactly where a power is exercised”.
Introducing the debate, Liz Saville Roberts said: “In the last 21 years of devolution, the power of our National Assembly has expanded and its confidence as an institution has grown. Now, in 2020, Welsh Government policy made in that Assembly has a greater impact on the lives of the people of Wales than ever before, yet extraordinarily my country still operates without a corresponding legal jurisdiction, despite having a full law-making legislature, its own Parliament, the Senedd.
“In the broader sense, that means that while devolution divergence is expanding Wales-specific legislation, it is being enacted without the underpinning structures of jurisdiction. That creates a jagged edge, duplication, a lack of accountability, additional costs to the citizen without transparency, and confusion. As the commission’s report says, the people of Wales both need and deserve a better system. Justice is not an island; it should be truly integrated into policies for a just, fair and prosperous Wales.”
Saville Roberts added: “Suffice it to say that the current system clearly does not work. For too long, Wales has put up with complexities that lead to the people of Wales being systematically let down. My party, Plaid Cymru, has long argued that it is time for Wales to take responsibility for justice and to have its own legal jurisdiction.”
She claimed there was a growing cross-party understanding that the devolution of policing and criminal justice, as well as powers over prisons and the probation system, was sorely needed.
“Surely now, with this landmark report, commissioned by Labour’s Welsh Government, we can move away from the accusations of partisanship,” she said, adding: “We in Plaid Cymru are calling for devolution of justice, not just because we like the idea and believe in the principle, but because the evidence shows that it will improve the lives of the people of Wales. That is the point of devolution, and all acts that we take in respect of devolution should be with that aim in mind.”