Justice at the Jagged Edge in Wales Robert Jones & Richard Wyn Jones Canolfan Llywodraethiant Cymru, Prifysgol Caerdydd Wales Governance Centre, Cardiff University MARCH 2019 JUSTICE AT THE JAGGED EDGE IN WALES Robert Jones and Richard Wyn Jones Wales Governance Centre Cardiff University Preface Acknowledgements The authors would like to extend their thanks to Luke Nicholas, Guto Ifan and Cian Sion for helping to put this report together. We are also extreMely grateful to Huw Pritchard, Laura McAllister, Rachel Minto, Ed Poole and Diana Stirbu for their advice and expertise. We also extend our warM thanks to Rhea Stevens and staff at the IWA for all of their help and support with the project. Finally, the authors like to thank all those agreed to take part in this research. The accounts, experiences and reflections of our interviewees have played a central role in shaping the report’s findings and conclusions. About us The Wales Governance Centre is a research centre that forms part of Cardiff University’s School of Law and Politics undertaking innovative research into all aspects of the law, politics, governMent and political econoMy of Wales, as well the wider UK and European contexts of territorial governance. A key objective of the Centre is to facilitate and encourage informed public debate of key developMents in Welsh governance not only through its research, but also through events and postgraduate teaching. About the authors Robert Jones is a Research Associate at the Wales Governance Centre at Cardiff University. [email protected] Richard Wyn Jones is a Professor of Welsh Politics and Director of the Wales Governance Centre at Cardiff University. [email protected] 1 About this project Cardiff University’s Wales Governance Centre launched the Justice and Jurisdiction project in July 2018. It brings together an interdisciplinary group of acadeMic researchers consisting of political scientists, criMinologists, constitutional law experts and political econoMists to investigate the operation of the legal and justice systeM in Wales. The project is funded by a coMbination of the EconoMic and Social Research Council, the Welsh GovernMent and Cardiff University. As well as producing high quality acadeMic outputs, the project will generate a series of reports intended to inforM the work of CoMMission on Justice in Wales as well as encourage an inforMed public debate on the organisation and operation of the legal and justice systeM in Wales. Whilst the research teaM continues to benefit froM coMMents and suggestions froM our external partners, the prograMMe itself has been conceived of and is being delivered wholly independently of theM. Wales Governance Centre Cardiff School of Law and Politics Museum Avenue Cardiff CF10 3AX www.cardiff.ac.uk/wales-governance-centre 2 Contents Executive Summary 7 1. On the Jagged Edge: The justice system in post-devolution Wales 11 1.1 On the Jagged Edge: the justice systeM in post-devolution Wales 11 1.2 Devolution and constitutional experiMentation 14 1.3 Research Methodology 18 1.4 Structure of the report 19 2. Mapping the jagged edge 21 2.1 Introduction 21 2.2 Policing and criMinal justice: the UK GovernMent responsibilities 22 2.3 Wider preventative approaches: Welsh GovernMent 26 2.3.1 HoMe affairs 28 2.3.2 Justice 35 2.4 The eMergence of a de facto Welsh criMinal justice systeM 39 2.5 Conclusion 42 3. Intergovernmental relations and complications 43 3.1 Introduction 43 3.2 Wales in Whitehall: ‘They don’t understand’ 44 3.3 The role of the Welsh GovernMent 61 3.4 Conclusion 74 4. The limits to joined-up policy making 75 4.1 Introduction 75 4.2 Barriers to new and alternative approaches 76 4.3 Wales as a “Minor partner”: probleMs influencing UK criminal justice policy 83 4.4 Progressive policy in retreat? The deMise 0f priority need 89 4.5 Conclusion 100 5. The funding labyrinth 102 5.1 Introduction 102 5.2 Who funds policing and justice in Wales? 103 5.3 A drain on whose budget 111 5.4 Conclusion 120 6. Scrutiny and accountability across the Jagged Edge 122 6.1 Introduction 122 6.2 The House of ComMons and HM Inspectorate 123 6.3 Policing and justice scrutiny at the National AsseMbly for Wales 131 6.4 Falling between the gaps? The consequences of coMplexity 144 6.5 Conclusion 154 3 7. Managing complexity: successes and limitation 155 7.1 Introduction 155 7.2 OvercoMing coMplexity? A de facto Welsh criMinal justice systeM 156 7.3 The jagged edge: an unprecedented source of coMplexity 172 7.4 Conclusion 187 8. Conclusion 189 Bibliography 190 Appendices 205 4 Executive Summary This report represents the first systeMatic atteMpt by acadeMics to explore the functioning of the policing and criMinal justice systeM in post-devolution Wales. The report explains the eMergence of a distinct set of arrangeMents in Wales which sees the UK and Welsh GovernMent’s responsibilities overlap within the saMe policy space. In constitutional terms, this space is perhaps best characterised as a ‘jagged edge’ of intersecting competences and responsibilities. The consequences of these unique arrangeMents are explored in this report through the accounts of service providers and practitioners who are tasked with operating it. SoMe of the report’s key findings are outlined below. 1. On the Jagged Edge: the justice system in post-devolution Wales • Introduces the report locating it in the context of the Wales Governance Centre’s work on the operation of the justice systeM in Wales. • Discusses the anoMalous nature Welsh devolution whereby the country’s legal and justice systeMs reMain part of an England and Wales unit despite the establishMent of devolved legislature and executive (the National AsseMbly for Wales and Welsh GovernMent.) • Notes the ways in which the absence of a third institutional leg to Welsh devolution shapes the latest devolution dispensation as set out in the 2017 Wales Act. • Points out that even in the absence of a Welsh legal jurisdiction and devolved criminal justice systeM, the justice systeM in Wales is no longer identical to the English systeM. This is because of the ways in which so Many areas of social policy that have a direct bearing on the criminal justice systeM have been devolved. • Argues that as a result of this division between non-devolved and devolved functions, in constitutional terms justice policy in Wales straddles a ‘jagged edge’ of intersecting competences and responsibilities. • Underlines the coMparative lack of research into or inforMation about the operation of the criminal justice systeM in the unique context of post-devolution Wales and sets-out (in brief) the Methodology utilised in order produce this report. • Explains the structure of the remainder of the report. 5 2. Mapping the jagged edge • In terMs of the devolution settleMent for Wales, policing and criMinal justice are reserved matters and therefore the preserve of UK level institutions as part of their responsibility for the England and Wales legal and justice systeMs. • In reality, however, the Welsh GovernMent undertakes a wide range of coMpliMentary activities in the Most if not all of these reserved areas. Which Means even • Reflecting the interdependence of reserved and devolved powers and responsibilities in the area of criMinal justice in Wales, a relative dense thicket of Welsh institutions have developed in order to help Meet the particular challenges of operating in the Welsh context. We argue that these institutions May be conceived of as representing a de facto systeM of adMinistrative devolution. 3. Intergovernmental relations and complications • Wales’ relatively small size Means that it is overlooked by UK justice officials in London who largely direct their attention towards the larger conurbations of England. • Practitioners in Wales continually have to reMind UK officials to take account of the Welsh context. The regular churn of officials and ministers in Whitehall add to the challenges facing service providers in Wales. • UK policy docuMents May acknowledge the Welsh GovernMent’s responsibilities but often fail to reflect how the policy will work in practice. • Insufficient consultation can underMine joint-working and intergovernMental collaboration. These probleMs have contributed to the developMent of de facto Welsh criMinal justice agencies. • The Welsh GovernMent does not currently have sufficient “capacity” to take full account of policing and criMinal justice issues in Wales. • Silo working between Welsh GovernMent departMents and regular changes to Ministerial portfolios have contributed to the confusing arrangeMents for policing and criMinal justice in Wales. • Although the Welsh GovernMent has historically been reluctant to take a lead on policing and criminal justice issues, it is now becoMing More active in this policy space. 6 4. The limits to joined-up policy making • The current constitutional arrangeMents prevent the Welsh GovernMent from pursuing alternative approaches in policy areas it has responsibility for. • The Welsh GovernMent cannot adopt a ‘whole-systeM’ approach to tacking the root causes of offending because it does not control all of the necessary legislative and policy levers. • As a “Minor partner” in the England and Wales systeM, the Welsh GovernMent has little influence over the trajectory of UK criminal justice policy. • The challenges presented to those actively seeking to influence UK GovernMent policy May lead to policy Makers and service providers in Wales simply giving up on any caMpaign for change. • A failure to influence UK GovernMent policy Means that the Welsh GovernMent can end up impleMenting policies that it does not want. • UK GovernMent justice policy has already contributed to the deMise of ‘progressive’ Welsh GovernMent policy. 5. The funding labyrinth • The funding arrangeMents for policing and criMinal justice in Wales are a source of complexity for practitioners. • UK GovernMent funding for English-only services creates a sense of confusion aMongst service providers in Wales.