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Nation•Cymru A news service by the people of Wales, for the people of Wales.

Feature

Devolving justice and policing to Wales would put it on par with Scotland and Northern Ireland – so what’s holding it back?

By Mark Mansfield
Image: Gwent Police

Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor University

Chaynee Hodgetts, Barrister & Honorary Lecturer in Emergency Medical Law, Queen Mary University of London

Devolution is “a process, not an event”, according to the then-secretary of state for Wales, Ron Davies, in 1997. But it is unclear what may come next for Wales in that process under the new UK Labour government, despite the same party now being in charge in both London and Cardiff.

One ongoing debate among politicians and experts for several years has been whether Westminster should and will devolve more powers to Wales, including justice and policing.

It wasn’t until the passing of the Government of Wales Act 1998 that the then National Assembly was established. It allowed Wales to make decisions over issues such as education, housing and agriculture. Further primary law-making powers were subsequently granted to the now Senedd (Welsh parliament).

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Reserved

But Wales doesn’t have control over all matters and some are reserved for the UK parliament. A number of these are consistent across all UK nations, including fiscal policy, foreign affairs, nuclear policy and national security. But others are different for Wales when compared to Scotland and Northern Ireland.

One of the most obvious examples is in the area of justice and policing. Unlike Scotland and Northern Ireland, Wales is not a separate legal jurisdiction with its own system of law, policing and courts. While there are increasing areas of divergence between England and Wales, technically speaking, Wales is part of a single jurisdiction with England due to decisions made during Henry VIII’s reign in the 16th century.

The issue of devolving justice and policing has cropped up consistently over the past 25 years. It has been the subject of a variety of debates in the Senedd, Westminster and in the media. It has also been analysed by a number of official reports and independent or cross-party commissions.

In 2011, the Silk commission was established by the UK government to explore the issue. In its 2014 report, it recommended devolving policing and youth justice to Wales by 2017. That never happened.

The Thomas commission, set up by the Welsh government in 2019, also recommended devolving justice to Wales, including youth justice and policing. Earlier this year, the independent commission on the constitutional future of Wales called on the UK government to agree to the devolution of responsibility for justice and policing to the Senedd and Welsh government.

In 2023, Keir Starmer said that a Labour government would introduce a “take back control bill”, to devolve new powers to communities from Westminster. Those intentions were echoed in Labour’s election manifesto ahead of July’s general election.

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'Fiddling around'

But the issue of devolving justice to Wales was absent from Labour’s manifesto. And in an interview in June, the now-secretary of state for Wales Jo Stevens described such a move as “fiddling around with structures and systems”. It is therefore unclear whether devolution to regions of England will take place in parallel to further devolution to Wales and the other nations.

Jo Stevens

And while this issue may not be at the forefront of UK Labour policy, it is an ongoing commitment of Welsh Labour. The latter commissioned even further research in August into the devolution of justice.

What are some of the potential challenges?

One significant issue is the age of criminal responsibility, currently set at ten in England and Wales. The Thomas commission recommended raising this to 12, aligning Wales with Scotland and the UN Convention on the Rights of the Child.

But this raises logistical questions. For example, what would happen when a case crosses borders or involves children just above or below the age threshold? These practical challenges need to be addressed if justice is to be devolved smoothly.

The Thomas Commission also laid out detailed proposals for reforms to youth justice, prisons and probation services.

The Welsh youth courts have already started implementing a more preventive and restorative approach, but a jurisdictional overlap with England has slowed progress. While children’s services are devolved, youth justice remains under UK government control.

Issues like transport to courts, funding and jurisdictional boundaries need careful consideration too. For example, how would authorities determine whether a crime committed near the Wales-England border falls under Welsh or English law?

Of course, this is an issue which already exists between England and Scotland, and there are complex rules in place. Dependent upon the nature and circumstances of the crime, “jurisdiction” is typically dependent on where it was first initiated. In turn, further challenges arise surrounding police force cooperation, as well as mechanisms for sharing different types of evidence. There are also legally-protected agreements regarding powers to arrest people in each other’s territories.

Ironing out these types of issues is particularly important in respect of female offenders, as Wales has made progress in providing better support for them.

Disparities in legal expertise may also become more of a challenge. Legal experts have noted that as Welsh laws become more distinct, judges in England may lack the relevant expertise to handle Welsh cases.

This concern has already arisen in Welsh tribunals, where appeals are sometimes directed to England’s Upper Tribunal, raising doubts about how well English judges can handle increasingly Wales-specific laws.

Cooperation

While these issues are very real, they shouldn’t block progress. With cooperation between Cardiff and Westminster, the devolution of justice could happen without major disruption. Instead of having endless debates and reviews, time and resources could be better spent acting on existing expert recommendations.

For instance, both governments could agree on a ten-year timeline – as recommended by the independent commission – to devolve justice, starting with policing. It’s an area which already has strong ties to devolved services at the local level. Youth justice and probation could then follow.

Despite the potential challenges, the new Labour UK government has a chance to bring about meaningful change. Devolving justice may take time, but it could bring Wales closer to achieving the legal autonomy many believe it deserves.

This article was first published on The Conversation

The Conversation

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10 comments

Evan Thomas

The issues mentioned aren’t even major threats - the article answers the jurisdictional question itself! Similarly, whether the age of criminal responsibility should be raised or not isn’t a barrier to devolution, but a debate to be had in the correct, and most democratic, political setting (the Senedd). The benefits of such reform should also be articulated clearer, as well, and not formulated as an anglocentric problem. Justice should be devolved because it will allow Welsh courts to develop their own vision of the law that greater reflects the values and beliefs of Welsh society. As a distinct political, social and cultural entity, we not only deserve to decide the substance of our justice, and its processes, but we require it. The current system offends the very nature and rule of law.

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Y Cymro

What is holding UK Labour back from devolving our criminal justice system and policing to Wales? Nothing. The will is not there. See they regard Wales as England's property to use & abuse. They don't want us to be a country. I've heard many lame excuses over the years from both the Conservatives & Labour why we shouldn't have control.. Enough is enough! Devolving would merely put us on an equal footing as England, Scotland & Northern Ireland. We are a legislative nation bound by an English justice system. It's untenable and unjust. I know you can't devolve those powers overnight. It's a process, I know. But we have the right to control our own criminal justice having our own native system back in the 10th century, with the Laws of Hywel Dda, which were illegally dissolved after our annexation by England on 1535. If Ukraine has the right to sovereignty and freedom, why is it that are we denied by the very same basic rights by those very Unionists who wear gold & blue pins in solidarity and argue how they have the right to independence from Russia. Wales having these powers devolved will not "threaten" the fabric of the so-called Union as the other home nations control their separate system within the framework of the United Kingdom.. So this dithering must end. Just devolve and stop stalling the inevitable.

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John Ellis

'Devolution is “a process, not an event”, according to the then-secretary of state for Wales, Ron Davies, in 1997.' True enough - but only as long as major UK political protagonists continued to believe that devolution is a good idea, or at least is a political kite worth speculatively flying. That was briefly the case, at least within the Labour party and on the part of the Lib Dems if not in the Tory party, back in the time when Ron Davies said what he said. But that's no longer the case, because one of the side-effects of the Brexit business has been to revitalize a more militant ideology of 'Britishness' which simply wasn't to the fore in the 1990s when the notion of devolution became fashionable, at least on the broad left of UK politics. Now 'Britishness' is very much back in fashion, and not least in the Labour party - witness the way in which Labour ministers in the new government now routinely issue their statements to the media with the union flag displayed as a background, something which they'd never have thought of doing in the mid-'90s. I think that on the UK-wide level only the Lib Dems, out of all the unionist parties, are still wholeheartedly and genuinely committed to advancing the cause of enhancing and broadening devolution to the nations and regions of the UK. You might think that the very significant increase in the number of Commons seats which they now hold - more, I hear, than they've ever won in the last century - might be significant in boosting the cause of increased devolution. But I don't believe that it is, because very many of the Lib Dem victories gained back on July 4th seem to me to have been won not so much because the voters in the constituencies concerned had been enthusiastically converted to Lib Dem policies, but rather because traditional Tory voters in those areas wanted to express their distaste for the road that the Tory party had taken in the post-Johnson era, but nevertheless baulked at the notion of voting Labour. The result worked out well for Ed Davey's party in terms of seats won, but I don't believe that it indicates a wholehearted voter commitment to Lib Dem principles. So on balance my hunch is that devolution has for now 'gone off the boil' in the context of Westminster politics, and that in consequence we're unlikely to see any really significant increase in devolution of powers to Wales in the immediate future. But that's not to say that the issue of further enhancing devolution is dead for good and all. By no means, because times change and political fashion changes in response. Worth recalling that Welsh voters decisively rejected devolution in 1979, but backed it less than two decades later

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Neil Anderson

Agreeing with you, John Ellis, all parties appear to have lost enthusiasm for devolution - more, less or as it is. Given this stasis, a vacuum is arising... While the Labour hegemony in England and Cymru might suggest that these regimes acting in harmony would advance the cause of Cymru. But the evidence to date is scant. The authoritarian climate exuded by the emperor, Der Sturmer, and his satraps is hardly conducive to better days in either country. An incompetent chancellor, a failed economic system and a mendacious already wealthy elite make up the set. Bad news, especially for the provinces. There is no future under Labour. 'Change' was merely a slogan, now debased by its unreality. Perhaps the Budget will throw us a few baubles. Something to disguise the continuous leaking of power and finance away from the people of Cymru. No doubt, the Distraction Broadcasting Corporation will have a good story to keep us all feeling comfy... Meanwhile...(human) nature abhors a vacuum. I doubt that many of us will be tempted by policy-free, going-nowhere faragism, which leaves only independence. Are we ready for the new thinking and the effort that will be required?

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John Ellis

You're somewhat - though maybe only slightly! - more pessimistic about the likely trajectory of the current Westminster government than I'm disposed to be at this early stage, but even so I'm inclined to agree with the general overall drift of your post. Except where you suggest that you 'doubt that many of us will be tempted by policy-free, going-nowhere Faragism'. In my own constituency in the north-east at last July's election Reform UK polled roughly twice the number of votes which Plaid Cymru secured, and that situation was also replicated elsewhere in Wales. And only a couple of weeks ago, 'Electoral Calculus' published research indicating that were a general election to be held in the Llanelli constituency at the time of their polling, the Reform candidate would displace Nia Griffiths as the local MP. And that's a seat which Labour has held without a break for a full century. My hunch right now is that Reform may score better at subsequent elections in Wales than most of us want to believe. For me the one positive aspect should that come about is that the Welsh Conservatives are likely to be weakened, since most - though by no means all - of their likely support would be likely to come from voters who in their absence would otherwise be backing the Tories.

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In reply to John Ellis

Neil Anderson

Your point about far-egoism is well-made, John Ellis. However, I think their votes will come more from disillusioned Labour voters. The Tory vote is already very weak and may not offer many votes anymore. By 2026, the failure of Reform in elected office is likely to become manifest. Little to offer and nothing to deliver. A lesson will have been learned, hopefully in time... But Cymru's weakened civil society (declining public services, education, health etc) plus its disappointing Labour Government and hobbled trade unions, have led to large-scale disillusionment with politics, and any belief that a solution might be found therein. However, and to add a note of optimism, were the Greens, LibDems and Plaid (not to forget the unions) to reject the failing neo-liberalist model in favour of more equitarian alternatives, a real opportunity would emerge...

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In reply to Neil Anderson

John Ellis

I hope that your optimism as to how things will ultimately pan out will prove to be accurate, but right now I'm rather less than sure. Time will tell.

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In reply to John Ellis

Padi Phillips

I think there are huge dangers in not taking Reform UK very seriously indeed. Reform UK is certainly taking Wales very seriously, and given the head-in-the-sand approach to this looming threat on the part of Plaid and Labour presently acting like a very efficient recruiting agency for Reform, I think it's likely they'll do very well in 2026's Senedd elections. That most of their candidates are likely to be utter morons given to unhinged outbursts is neither here nor there, as if they remain unchallenged and not deliberately drawn out and shown up for exactly what they are to the point where they become an embarrassment to Reform, then it's likely we will see them in the Senedd, if not in droves, in substantial numbers and certainly enough to do huge amounts of damage. The only way to deal with the threat of Reform UK is to regard in a similar light to the way in which fascists in Wales are usually regarded: they exist, but are kept fragmented and relatively ineffective due to well organised countermeasures. We must never lose sight the Reform is merely the BNP, Patriotic Alternative, Britain First in their light version, socially acceptable fascists, if you like. The only defence there is against Reform UK is to expose them for what they are.

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In reply to Padi Phillips

John Ellis

I agree with you entirely, without reservation. As I suspect that you are too, I'm somewhat baffled by the apparent fact that neither the media nor those in positions of authority in other political parties seem to be largely dismissive of the potential impact that Reform looks well capable of having on electoral outcomes here in Wales.

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Jones Arfon

Devolution was weakened by the Tories's Internal Markets Act which undermined the Sewell Convention. There is no indication that Starmer's Government plan to amend that Act to once again strengthen Sewell back to its original intention. We tried some years ago (as PCC's) to devolve Youth Justice with Dafydd Wigley moving an amendment to the Wales Bill in the Lords which was supported by Lord McNally then Chair of the Youth Justice Board and Alun Michael but our now First Minister, but the then Baroness Morgan and others sadly didn't support the amendment.

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'Devolution is “a process, not an event”, according to the then-secretary of state for Wales, Ron Davies, in 1997.' True enough - but only as long as major UK political protagonists continued to believe that devolution is a goo...

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