A review of the justice system in Wales has has called for a new wave of devolution of funding and powers, including the creation of a dedicated justice department that would better align policymaking across a range of services.
The proposals are the work of a commission set up by the Welsh Government and chaired by former Lord Chief Justice of England and Wales Lord Thomas of Cwmgiedd. It concluded that the people of Wales were “being let down” by the system in its current state, with devolution arrangements that left policy and spending decisions on justice out of kilter with devolved matters such as health, education and social welfare.
The report said that while justice remained under the control of Westminster, Wales was denied policymaking benefits that were enjoyed in Northern Ireland, Scotland and England with “no rational basis” for the differentiation.
It said examples of the way current devolution arrangements were problematic included the provision of health services for prisoners, and housing for those released from jail.
The report added that while there was joint working between the police and Public Health Wales on dealing with the consequences of childhood deprivation it would be more effective and sustainable if there were policy and delivery alignment. Economic development was cited as another area that would benefit from the devolution of justice powers and funding.
The commission said further evidence of the unsustainability of the current separation of funding and powers between London and Cardiff was evidenced by “severe” reductions in the justice budget made by Westminster since 2010 and compensated for by the Welsh Government.
“The impact on Wales has been significant as the interests of Wales have not been at the forefront of the Westminster government’s policy decisions,” the report said.
“The Welsh Government has used its own money, in addition to permitting rises in council tax, to try and mitigate the damaging effects of these policies. The result is that almost 40% of the total funding is actually contributed in Wales.
“This is above other tax revenue that is raised from Wales and then allocated by the Westminster Government to Wales. This position is unsustainable when the Welsh Government has so little say in justice policy and overall spending.”
The report said the creation of a justice department, answerable to a cabinet minister and bringing together powers currently exercised in London by the home secretary and justice secretary would follow the model of Northern Ireland and Scotland.
It said the role of the counsel general, as the chief legal adviser to the Welsh Government, should be a separate, non-portfolio role, which would include the leadership of the Government Legal Service in Wales following the “classic position across the common-law world”.
In relation to civil service support, the commission said there was a “real and urgent need to increase leadership skills” in relation to matters affecting justice. The report said family justice was one area in Wales where commissioners had been “unimpressed” by current practice and capabilities.
The report projected that legislative devolution for Wales would bring with it a need for new policy capacity estimated to cost £14m a year, based on a directorate of 200 staff.
“Experience has shown that the devolved administrations generally receive less resource than is needed to undertake new devolved policy function as the UK government takes the position that additional policy costs should be borne by the devolved administration as they are costs that would not have otherwise occurred.”
The commission said it had looked at whether justice in Wales could be improved by further devolution of the executive functions, but concluded that only full legislative devolution, combined with executive powers, will “overcome the obstacles” of the current devolution arrangements.
“For full legislative devolution to succeed, it will require a full transfer of the funding for the justice system and must be accompanied by the development in Wales of capacity, capability and leadership,” it said.
“The Welsh Government should begin the process of reform immediately; the Assembly should monitor and review progress.”
It added: “The cooperation of the Westminster Government will be needed and, subsequently, legislation by the Westminster parliament.”
Wales’ first minister Mark Drakeford said he would make a statement on the commission’s report after this week’s recess.