Commission on Justice in Wales: Written Evidence submitted by the Welsh Government Contents Introduction 1 Part 1: The constitution and the law 3 Part 2: Policing and justice as public services 8 Conclusion and the way ahead 11 Annex 12 Mae’r ddogfen yma hefyd ar gael yn Gymraeg. This document is also available in Welsh. © Crown copyright 2018 2 | Commission on Justice in Wales:WG35141 Written Digital Evidence ISBN 978-1-78937-339-4 submitted by the Welsh Government Introduction The Commission on Justice in Wales has been of England and of Wales has already diverged and invited to consider the outstanding questions about will continue to diverge, as this is an inevitable policing, the justice system and the legal jurisdiction consequence of the creation of a legislature for in Wales not properly addressed by the Wales Wales. A fundamental characteristic of a legal Act 2017. The justice-related matters within its remit jurisdiction - one uniform body of law – therefore no are issues of broad constitutional significance, as longer exists. the fact that legislative competence and executive The existence of a single legal jurisdiction for responsibilities for policing and justice in Wales England and Wales is often said to be the reason are currently reserved to the UK institutions has why policing and the justice system are (for the main considerable impact on the way Wales is governed. part) not devolved to Wales. But there is no reason This evidence from the Welsh Government provides why these matters should not be devolved and there an initial assessment of that impact on the system are compelling reasons why they should. Decisions of government in Wales, on inter-governmental about what should, or should not, be devolved to relations, on Welsh law and ultimately on public Wales should be based on establishing a coherent services provided to the people of Wales. system of government for Wales which can improve Developing a coherent and stable system of the lives of people in Wales. They should not, as has government for Wales has been a long process, been the case too often, be based on what has gone one which is not yet complete. What began as a very before. The absence of a legal jurisdiction for Wales limited form of executive devolution in 1999 has is a quirk of events of nearly five hundred years ago, evolved. We now have a fully fledged legislature, a while the subject matter of the powers devolved to separate government accountable to that legislature Wales are too heavily influenced by what was initially and to the people of Wales, and means to raise devolved to the Welsh Office some fifty years ago. funding for public services and investment through A common characteristic of decentralised taxes and borrowing. However, the devolution government across the world is subsidiarity – settlement remains limited by domestic and the presumption that the central government of a international comparison and is, largely as a result state should only perform the tasks that cannot of that, highly complex. The Wales Act 2017 did not effectively be undertaken at a more local level. In bring an end to this process as had been hoped consequence, this means that domestic matters – and, indeed, arguably it has added complexity. such as the provision of public services are generally Longstanding issues have not been resolved, and devolved. Policing and the justice system are no in some respects problems have been further different. They are public services which are almost exacerbated. always devolved. Creating an artificial distinction Moving from a conferred to reserved powers model between those public services that are devolved, of devolution exposed fault lines in the devolution and those that are not, puts up barriers to the joint settlement, largely arising from the UK Government’s working between government and local delivery expressed wish to “protect” the single legal agencies which is detrimental to effective public jurisdiction of England and Wales. The rationale services. for this appeared to be, essentially, to seek to limit the extent to which there is divergence in the law that applies to England and to Wales. But the law Commission on Justice in Wales: Written Evidence submitted by the Welsh Government | 1 This Written Evidence examines these matters further as follows: Part 1 –relates to the constitution and the law and is concerned with the complexity of the devolution settlement, inter-governmental relations, the legal jurisdiction, access to justice and the legal sector in Wales. Part 2 –relates to policing and justice as public services and is concerned with ensuring coherent delivery of public services. It outlines what the Welsh Government is currently doing to support justice services and the difficulties in doing so within a limited devolution settlement, and the opportunities that would arise were these matters to be devolved. 2 | Commission on Justice in Wales: Written Evidence submitted by the Welsh Government Part 1: The constitution and the law Introduction The Commission is considering issues that are But the “England and Wales” legal jurisdiction does fundamental both to the constitution and to the not have the fundamental characteristics of a legal law. Unlike, for example, the case in Scotland, jurisdiction: the process of devolving power to Wales has been • “England and Wales” is not a coherent political unorthodox. It has been an ad hoc, piecemeal and geographical territory – Wales has had a fully- process that has been frequently criticised. fledged legislature since 2011 and the concept of There have been significant improvements “England and Wales” no longer exists for any other since 1999, but in so far as justice, the legal purpose; jurisdiction and the law itself are concerned, Wales’ constitutional arrangements remain highly • England and Wales does not have a homogenous unconventional, and are an outlier in global terms. body of law that extends throughout that territory – it is no longer sensible to speak of the law of England and Wales, as the law that applies to Legal jurisdiction Wales continues to diverge from that in England The single legal jurisdiction of England and Wales and an increasing proportion of the law that is a relic of history. It derives from Tudor times, applies to Wales is bilingual. specifically from the Laws in Wales Acts of 1535 and Notwithstanding the fact that the England and 1542. The purpose of these Acts was essentially Wales legal jurisdiction is no longer fit for purpose, to assimilate Wales into England for governmental during the development of what became the Wales purposes, and in doing so to seek to ensure political, Act 2017 the UK Government – initially at least administrative, linguistic and legal uniformity across – sought to “protect” the jurisdiction. This was to England and Wales. be done by restricting the National Assembly’s This uniformity has however in modern times ceased competence, presumably in an attempt to maintain, to exist. Administrative devolution, implying distinct at least to some degree, a homogeneous body governmental policy and administration for Wales, of law. But this body of law is already diverse in goes back at least as far as the creation of the content, in application and in language. The Welsh Welsh Office in 1965. The creation of the National Ministers have made approximately 4500 Statutory Assembly for Wales in 1999 democratised that Instruments since 1999 and the National Assembly devolution, and the National Assembly obtained full has to date enacted 56 pieces of primary legislation, law making powers following the referendum in 2011. many of which are lengthy and wide-ranging Wales has its own government, a distinct system of in content. public administration and has recognised Welsh as To give but one example, the National Assembly an official language of equivalent status to English. has been particularly active in legislating on Most fundamentally, Wales has its own political environmental matters. Devolution has enabled system, legislature and its own laws. However, a the introduction, through a number of pieces of false notion of legal uniformity remains, in the guise legislation, of a unique legislative framework for of the only creation of those 16th century Acts that the environment, which delivers on international remains – the single legal jurisdiction of England obligations and puts sustainable development and and Wales. the environment at the heart of policy decisions in Wales. Further, to support an integrated approach to managing our environment, Natural Resources Wales Commission on Justice in Wales: Written Evidence submitted by the Welsh Government | 3 was created and provided with a new statutory of Wales Act 2006 (as amended by the Wales purpose aligned to the legislative framework, Act 2017) contains 44 pages of reservations to deliver well-being goals. Thus, the legislative and restrictions, while by contrast the Scotland framework for environmental matters for Wales Act (as enacted) contains 20 equivalent pages. now differs radically from that for England, yet both The difference is nearly all in consequence of the exist within the existing common legal jurisdiction, jurisdiction, and reservation of policing and justice. and this will considerably complicate matters when As well as the complexity (and in this respect the consequences of Brexit for environmental issues the settlement is even more complicated after come to be addressed. moving from the conferred to reserved model It is additionally worth noting that the laws of England of demarcating power) this also has practical and Wales diverge also in consequence of laws implications. Under the principle of subsidiarity most made only for England, and that the emergence ‘domestic’ matters have been devolved to Scotland of “English” laws (and English votes for English and Northern Ireland, meaning that their powers laws in Parliament) means that there is an equally are far more self contained and the potential for compelling case for a separate (truly) English legal conflict with that reserved to the UK Parliament far jurisdiction.