Why Wales should control police and criminal justice

The devolution of policing and criminal justice is emerging as the most neuralgic issue for the next phase of Welsh devolution. Why? Mainly because Welsh Labour and Conservative MPs at Westminster are joining together in implacable opposition. Why are they so anxious about functions that are already devolved to Scotland and Northern Ireland?

The Welsh Government made a persuasive case for having these powers in its submission to the Silk Commission in February. It said practical benefits would accrue from a more joined-up approach to service delivery as a result:

“There is scope to drive a concerted approach to reducing offending and re-offending, through the Welsh Government’s public service reform programme, which engages all public service partners in prevention and service integration. This would enable us to link criminal justice reform more closely with the devolved services that can have a particular impact on offending and criminality, such as health (particularly mental health and substance misuse), education, social services, housing, and employment and training.”

At present the Welsh Government has to pick up the financial consequences of shortcomings in the criminal justice system over which it has no control, for instance the requirement to house prisoners released from prison. Much of the youth justice system is in practice handled by the Welsh Government, in particular health and social services. As the Counsel General, Theodore Huckle, put it in a speech to the Society of Legal Scholars last November:

“There are great advantages in having devolved responsibility for these services. Each part of the UK has its own unique challenges t0 face in relation to crime, and these are dictated by a number of factors such as population density, terrain, cultural trends, the structure and organisation of police forces, and many others. By maintaining powers over policing and criminal justice at a more local level, it can be easier for devolved administrations to promote and encourage efficiencies through a restructuring of administrative services within their territorial boundaries while focusing on tackling the crimes which most greatly affect their communities.”

If the latest polling data is anything to go by these arguments are swaying public opinion. Demand for Welsh control over law and order (that is, policing and criminal justice) matches the same for schools and NHS which are already devolved. In a poll carried out by YouGov for the Wales Governance Centre in February respondents were asked to choose which level of government should run the NHS, schools, law and order, and defence and foreign affairs:

Yougov poll February 2013: Authority best placed to run key services (%)

	Welsh Government	UK Government	Local Authority	European Union	Don’t Know
NHS	63	23	6	0	9
Schools	62	16	13	0	8
Law and order	58	28	3	1	9
Defence and foreign affairs	12	75	3	1	9

So why is the devolution of policing and criminal justice proving so controversial? Is it because MPs at Westminster see it as the thin end of another wedge that will lever away the justification for their continuing numbers?

It should be conceded that there is little tradition of Welsh policy-making in these areas. Unlike Scotland, which kept hold of its legal institutions following union with England in 1701, Wales lost its distinctive legal personality with Henry VIII’s Act of Incorporation in 1536.

There has always been a separate Scottish legal system, judges, courts and the rest. Unlike the Welsh Office, the Scottish Office oversaw the administration of justice in Scotland throughout the 20^th Century. On the other hand Wales has shared its legal institutions with England for centuries, including a common jurisdiction despite now having own distinctive legislature.

Emyr Lewis, a Senior Fellow in Welsh Law at the Wales Governance Centre, says a further, perhaps related, problem is that in Wales people tend to mean different things when they talk about criminal justice. Some mean the police, crime prevention, and keeping law and order. Some mean prisons, probation and the penal system. Others refer to the administration of the criminal courts, and yet others mean the criminal law itself.

The reality is, of course, that it embraces all of these things. Which frightens some of the political horses. Welsh Conservatives, in particular, see devolution in this area as a fundamental threat to the union, though plainly that has not applied in the case of either Scotland or Northern Ireland. Of course, in Northern Ireland policing and criminal justice was devolved as part of the Belfast Agreement, but only implemented well into the 2000s. As Gordon Brown told the Northern Ireland Assembly, when he was Prime Minister:

“How can you, as an Assembly, address common criminality, low-level crime and youth disorder when you are responsible for only some of the levers for change, and when you have responsibility for education, health and social development but have to rely on Westminster for policing and justice?”

Yet Welsh Labour MPs at Westminster were most affronted when the Welsh Labour Government in Cardiff Bay suggested policing and criminal justice should be devolved. They appeared to think their position would be undermined if these matters were removed from their control. In reality, of course, they have no control over them at Westminster. That is the prerogative of the UK Government of the day, currently the Tory-led coalition. Welsh Labour MPs may well start changing their tune when they wake up to plans currently being hatched to privatise parts of the delivery of the criminal justice system – starting with the probation service. I predict they will soon be arguing for devolution as the only way of preventing that in Wales.

Meanwhile, devolution of police and the criminal justice system is high on the present agenda of Silk Commission’s deliberations. This was made clear in a presentation given by the Commission’s Secretary, Michael Kay, to a seminar on Devolution and Crime Control at Cardiff University last week. He explained that members of the Commission were presently asking themselves six questions in addressing whether policing and criminal justice should be devolved:

1. Can policing be separated from the administration of criminal justice?
2. Would devolution of policing and criminal justice be better expressed in terms of conferred powers or as powers that were not reserved?
3. Is there sufficient capacity within the Welsh Government to administer police and criminal justice?
4. Would devolution of police and criminal justice result in greater centralisation?
5. Is the border between Wales and England too densely populated to allow the devolution of police and criminal justice?
6. What can we learn from the experience of Scotland and Northern Ireland where police and criminal justice powers are devolved?

Put your answers on a plain post card to the Commission. For my part, I think all they need to do, as with the Richard Commission before them, is follow the evidence.