When the Welsh Assembly was constituted in 1999, there were 20 conferred subject areas where matters would be determined by the Welsh people through their democratically elected representatives.
As one famous Welsh politician once said “Devolution is a process not an event” and during the 17 years since the Assembly came into existence, there have been 3 constitutional settlements, reflecting the need to expand the powers of the Welsh Assembly because of the evolution of the legislative procedure in Wales.
However, perhaps members who served on the Welsh Affairs committee during the Draft Wales Bill period, sometimes wished that it was indeed an event and not a process!
The 4th constitutional settlement, the Draft Wales Bill, introduced by the then Secretary of State for Wales, the Rt Hon Member for Preseli Pembrokeshire, in Oct 15 promised a stronger, clearer and fairer settlement for Wales that will stand the test of time.
Well it lasted 4 months. On Feb 29th 2016, the Secretary of State announced that “significant and substantial changes” will be made to his baby.
It may be just serendipity that on the same day that the Queen officially opened the 5th Assembly for Wales, the present Secretary of State for Wales, the Rt Hon member for the Vale of Glamorgan, introduced the revised Draft Wales Bill, the 5th constitutional settlement, or the second 4th attempt, into this House.
He said “Welshmen and Welshwomen want sensible legislation that reflects their priorities and allows them to live under the laws of their own choosing. I have heard that instruction loud and clear and I will deliver it.” Brave words.
In the time that I have today, I’m not going to speak about modification of the “necessity tests” or “ministerial consents” or even the list of reserved matters, which has been reduced by 15%, I’m going to concentrate on the issue of devolution of justice, which has been a major area of disagreement between the UK and Welsh Governments. Indeed, there was no mention of devolution of jurisdiction in the Draft Wales Bill. However, First Minister Carwyn Jones has made it known that he is in favour of devolving justice and in 2015, in response to the Draft Wales Bill, the Welsh Government argued for a “Welsh legal jurisdiction that is distinct, but not separate, from that of England”.
The new Bill does not propose the devolution of the justice system, or policing, but explicitly recognises that there is a body of Welsh Law. However, it does not propose the creation of a distinct or separate legal system, a move that was advocated by the First Minister and unanimously backed by the Welsh Assembly.
The new Bill does allow the Assembly to continue to modify the civil and criminal law to give effect to its legislation, but does not extend to legislating on substantial areas of criminal law, for example offences against the person.
The new Bill creates a Working Group of officials from the Welsh Office, Ministry of Justice, Welsh Government and the Lord Chief Justice’s office that will monitor the situation. I welcome this because there are many areas of justice in Wales that need clarification, but what matters to the public is whether they can get justice when they have suffered. I must admit that in the many campaigns in which I have knocked doors, devolution of the justice system isn’t something that is a burning issue for constituents.
This may be a reflection of the lack of understanding of legal rights, but there are many constituents who contact me because they cannot get access to legal advice, or have problems, but do not identify these problems as being legal issues. I am sure that there are many members whose advice surgeries are also inundated with constituents who are being denied access to justice.
However, it is fundamentally important that the justice system of England and Wales and for that matter, the ever growing body of law in Wales, is clear, accountable and works for the benefit of constituents in Neath and in other Welsh constituencies.
What matters is that the people of Wales have access to justice.
But this is a very complicated domain.
To understand the administrative justice landscape in Wales is not straightforward and is made complex by the intertwining of devolved and non-devolved systems.
Administrative justice is not only about citizens’ rights and redress, but also about learning from what has gone wrong and producing a vision of good public administration. Administrative justice includes disputes between the citizen and the state and is the cornerstone of social justice in Wales, a means by which citizens can have a voice, other than through the ballot box, and the means by which to hold public services to account.
This will lead to better results for citizens, less work for the appeal systems, lower costs and most importantly, social justice.
Good law and effective scrutiny are essential components of the administrative justice system and this area is, to a large extent, already devolved.
In areas such as housing, education, health and planning, Wales has its own administrative law and the Welsh Government has responsibility for relevant justice policy and daily administration.
Clause 10 introduces justice impact assessments, meaning that the person in charge of an Assembly Bill must make a written statement about its potential impact on the justice system of England and Wales.
Every Bill and SI introduced into this House and the Other Place has an impact assessment, or should have an impact assessment, which is often used by opposition to attack the proposed legislation and suggest amendments. Rightly so.
Most tribunals still operate on an England and Wales basis, but some are devolved, for example, the Agricultural Land Tribunal for Wales, the Adjudication Panel for Wales Mental Health Review Tribunal for Wales, the Residential Property Tribunal for Wales.
All these tribunals are supported by a single Welsh Tribunals Unit, but there remain issues concerning the status of the judiciary in devolved tribunals. The judiciary in devolved tribunals are not a fully integral part of the judiciary for England and Wales and there is a lack of clarity concerning arrangements for their appointment, training, conduct and discipline. Statutory responsibility is not clear in all cases and formal agreements are needed so that there is no room for doubt about roles and responsibilities.
The Working Group may consider the following:
- That all devolved Welsh judicial appointments have a standard procedure agreed by the Welsh Government and the Judicial Appointments Commission and that training, appraisal, and disciplinary arrangements be of a standard as demanding as elsewhere in the UK.
- That the Welsh Government works with the Ministry of Justice, HMCTS, DWP, HMRC and other UK Government departments to ensure that data concerning redress systems can be separately identified and made available to elected representatives.
- That the Lord Chief Justice should appoint an existing Welsh Judge to lead on devolved Welsh Tribunals.
While the devolution of justice is complicated matter, dividing opinion and attracting as many critics as champions, the need for a clear, well delineated system is evident. As this Bill passes through Parliament efforts must be made to articulate how the body of Welsh law recognised by this provision forms part of the law of the legal jurisdiction of England and Wales for the primary purpose of making that law accessible to practitioners and citizens alike.
Another example of muddy waters is Youth Justice.
This has not been mentioned in any Bill so far, but needs to be considered by the Working Group.
When Charlie Taylor began his review into Youth Justice, the first place he visited was Hillside Secure Unit in my constituency Neath.
This is the only institution in the UK that offers placements for children who have suffered through multiple social service placements and for children who have got into trouble with the law.
Children from all over the UK are placed in Hillside, but placements only last for 3 months, which is not long enough to make a positive difference to a child’s life and the judiciary and social services often see Hillside as a place of last resort, but if children came to Hillside earlier on in their troubled lives, they would not suffer the trauma of multiple placements and/or many visits to youth courts.
The work at Hillside aims to help children turn their lives around and involves, health and psychological assessments, behaviour modification, academic and vocational education, improving communication skills and becoming self sufficient before leaving Hillside to resume living in the community.
This is an excellent example of partnership working. Neath Port Talbot Council, Police, PPC, YJB, Welsh Government and UK Government working together for the benefit of troubled children.
But Hillside want to build a step down unit on its site, so that children can make the transition from living in a secure unit to living in independent accommodation such as flats and dormitories on site, before they have to fend for themselves in the community.
Hillside needs funding to build this unit. So how does this work. Whose responsibility is it to pay for this unit? Is it NPT council, responsible for social services, whose funding has been cut by £50m due to the austerity policies of the U.K. Tory Government? The Welsh Government who are responsible for Education, Health and housing, whose funding has been cut by the UK Tory Government? Is it the UK Gov who are responsible for Policing and Youth Justice?
Both access to comprehensive and coherent advice, and youth justice are two areas where the involvement of the Welsh Assembly and the devolution to the Welsh Government have significantly contributed to the process of rationalizing the offer to citizens. It is in these models of delivery that the UK Government should look for examples of how they can support the Welsh Government to create Welsh Law within the parameters of the current jurisdiction, and in doing so devolve the appropriate parts of justice that allow the Welsh Assembly to develop its identity, discharge its responsibilities, and maintain a legal jurisdiction which is distinct but not separate.