John Osmond says the Silk Commission is tackling a neuralgic devolution issue worrying Welsh MPs at Westminster
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 20th 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:
- Can policing be separated from the administration of criminal justice?
- Would devolution of policing and criminal justice be better expressed in terms of conferred powers or as powers that were not reserved?
- Is there sufficient capacity within the Welsh Government to administer police and criminal justice?
- Would devolution of police and criminal justice result in greater centralisation?
- Is the border between Wales and England too densely populated to allow the devolution of police and criminal justice?
- 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.
Wales needs more powers but should get police powers only when it has demonstrated it is a mature democracy. That would follow a change of elected government. It is dangerous to give such powers to a one-party state.
I so agree with you Tredwyn. I’m very much for more powers but the thought of labour in Wales to be wielding that power sends shivers down my spine. Having said that, taxation powers will have the effect of making them more responsible and hopefully make the currently lobotomized electorate ask more questions. Sometimes I do despair though. Is this really how what to me was only a dream 15 years ago will turn out?
Tredwyn has a point, though Wales has been seen to do a decent job on Health and Education. The devolution of Criminal Justice is more complex enveloping policing, the courts and all the socially oriented services mentioned in his fine article by John Osmond. The broader question is – “do the Welsh Government have the confidence to take on this enormous challenge?” The longer these powers are vested in Westminster, then the greater the challenge becomes particularly with the huge complexities related to the EU.
As Wales moves toward greater self-determination the ‘not reserved model’ seems to me to be the preferred option. Again it is an expression of confidence.
The further we devolve it seems only fair that Welsh MP’s at Westminster should have narrower voting rights, as indeed should Scottish and Northern Ireland MP’s.
In our discussions we seldom embrace the real challenges faced by Westminster by devolution and the resulting substantial establishment changes that must follow.
What evidence is there that a DECENT job has been done on a)education,and b)health? The Blair/Brown years resulted in massive increases in money (not made by us)for public services in Wales. But where did it all go?. We are now in the opposite position where money for public services going to be reduced,seemingly for 10 years and the impact has yet to be seen. When the hospital closures/reconfiguration take effect I’m not sure the average Welsh voter will be too enamoured of the Welsh Government,and that includes in the Bridgend area. Why is welsh education seen as being very poor,particularly for bright working class children who seem to have little inclination to go to the top universities which is a life changeing opportunity. Perhaps some of us can ‘see the big picture’,but it appears that this hell bent process for more powers is in reality a desire to seperate us from the UK bit by bit,and before we know it NATION BUILDING will have come to fruition. In conclusion who throws more responsibility/complexity on people who are already strugling to cope?
“5. Is the border between Wales and England too densely populated to allow the devolution of police and criminal justice?”
This ‘test’ really is such a massive red herring… and it is trotted out in the guise of the “porous border” argument in tax devolution discussions as well. I just can’t believe people still fall for it. Have people never been to New York City, passed through the Lincoln Tunnel and arrived in the State of New Jersey in the blink of an eye? Are they really so ill-informed that they don’t realise that the USA is a federal country with separate state and federal jurisdictions for both justice and taxation purposes? tens of millions of people living and working on either side of a river must be in total chaos every day… If they think the border of England and Wales is densely populated with incredible levels of cross-border movement, have they ever travelled around North East Germany, Northern Belgium and Southern Netherlands? If they had they’d know what densely populated and mobile borders looks like…
Or perhaps that’s not the underlying argument… that even if you accept that we have a ‘densely’ populated border (and we so definitely don’t, by any stretch of the imagination – unless you consider the metropoli of Queensferry and Saltney in the North and Chepstow in the south as in some way equivalent to Jersey City and NYC, Antwerp and Breda, etc., etc.), it’s just that we’re too dumb to overcome any temporary complications that diversity brings to public affairs…
Duw bach, us Cymry really are awful twp… even the esteemed Paul Silk it seems…. Elevate your thinking Cymru, or at the very least look over the garden fence every now and again to the big wide world out there…
If the people of Wales want this responsibilty, then England has no right to withold it. Some of us must understand that Wales is not on trial. It is not our duty to “prove” ourselves to England, or anyone else. Our feedom is ours to take, not England’s to give.