Delivering Justice for Wales: 2024 progress report - Part 2: preparing for devolution

Delivering Justice for Wales was a publication about building the strongest possible justice system for Wales. It did not start by asking the question who should run the justice system, but rather what reforms were needed to take place so that we can get the best possible results. Its core conclusion was that "our approach to justice in Wales is one which is built on successful partnership working” but that “our successful partnerships happen in the broader context of a disjointed system, where services which should be tied together are instead split across devolved and non-devolved bodies. The effectiveness of these partnership arrangements and their ability to improve are therefore fundamentally limited.”

It was primarily on this basis that the Commission on Justice in Wales (the Thomas Commission) concluded in 2019 that the design and delivery of justice policy should be devolved to Wales, and that the commitment to pursue this objective is enshrined in our Programme for Government for 2021-2026.

In December 2022, 7 months after the publication of Delivering Justice for Wales, the report of the Commission on the UK’s Future established by the UK Labour Party (Brown Commission) was published. The Brown Commission’s relevant recommendations included that:

• there was “no reason of principle why justice in its entirety should be not devolved to Wales”
• “new powers should be made available to the Senedd and Welsh Government, including embarking upon new powers over youth justice and the probation service” 
• while youth justice and probation were explicitly referenced, the Brown Commission’s proposals did not rule out other areas of devolution – the extent and pace of devolution should be a decision for the Welsh people through their elected institutions; and 
• that decision should be informed by the recommendations of the Independent Commission on the Constitutional Future of Wales.

The Welsh Government established the Independent Commission on the Constitutional Future of Wales, co-chaired by Professor Laura McAllister and Dr Rowan Williams. The purpose of the Commission is to consider and develop options for fundamental reform of the constitutional structures of the United Kingdom, and to consider and develop all progressive principal options to strengthen Welsh democracy and deliver improvements in accessing justice for the people of Wales.

The final report of this commission was published in January 2024. The report makes a number of recommendations to strengthen Welsh democracy and protect the devolution settlement.

Welsh Ministers and officials gave evidence to the commission and its sub-groups, including the justice sub-group both in person and in writing,  as well as encouraging all those with an interest (whatever their views) to put forward evidence to the commission. Among the evidence that the commission considered is the first book length academic study of the Welsh criminal justice system: “The Criminal Justice System in Wales: On the Jagged Edge” by Professor Richard Wyn Jones and Dr Robert Jones.

The commission’s justice sub-group published a separate report and found that the evidence presented to them makes a “strong case for change.”

They made specific conclusions relating to the devolution of justice to Wales. The sub-group noted concerns about the performance of the justice system in Wales and said that:

“the group received no convincing evidence to counter the conclusions of the Thomas Commission that justice and policing should be devolved to the Senedd and Welsh Government.”

The sub-group concluded that:

“Devolution could be achieved without major disruption, through a programme of work led jointly by the UK and Welsh Governments, which should be tasked with agreeing a timetable and implementation plan, likely to require some 10 years to deliver. The most straight forward services to begin the process are policing… youth justice; and probation”.

The combination of these 2 commissions, the support of trade unions and the growing proximity of a UK General Election, has in our view,  increased the likelihood that the process of justice devolution could commence in the near future. Our duty to prepare for that possibility, noted in Delivering Justice for Wales, has therefore become more pressing.

We agree with the conclusion of the Commission on Justice in Wales that the biggest benefits will come with the devolution of the whole justice system.

That is why our ultimate objective remains to pursue the devolution of justice in its entirety. However, we believe a phased approach is the only practical way devolution can be managed.

We do not at this stage have a defined schedule of the order in which different parts of the system should be devolved. In Delivering Justice for Wales, we talked about devolution as “a process of change over time, prioritising those areas where we can most improve outcomes for Welsh citizens”, and this is the principle that would guide us. Factors that would aid us in identifying these areas might include:

• the extent of inter-connection or overlap between those areas and existing devolved areas
• the degree of difficulty in detaching responsibility for those areas from other related areas
• the extent to which we would be able to secure appropriate funding
• the extent to which local involvement and accountability is particularly important
• the degree to which there is an obvious need for improvement in the area
• the level of support from partners and stakeholders
• the degree to which benefits that might flow from devolution would contribute to the Welsh Government’s wider objectives to improve the well-being of the people of Wales.

Using this metric, we consider that both youth justice and probation are strong candidates for early devolution, primarily because their functions dovetail into existing devolved services.

Effective probation services need to work very closely with social services, education and healthcare providers among other locally delivered services.

Children in contact with the youth justice system will also very often have relationships with a number of devolved services, including significant overlap with the population of children who are looked after. Focusing on children first is also in keeping with the ethos of the Wellbeing of Future Generations Act and the need to break intergenerational cycles.

We, and others have also consistently identified policing as being potentially suitable for early devolution, given the focus on local delivery and accountability. We welcome the agreement of the recent Constitutional Commission with this. In addition, devolution of policing is explicitly referenced within the Programme for Government and was recommended not just by the Thomas Commission, but the Silk Commission before it. We also note that in the aftermath of the publication of Delivering Justice for Wales, all 4 elected Police and Crime Commissioners indicated their support for its devolution.

Over the past year, we have therefore focussed our efforts on gaining an understanding of the legislative and practical steps required to devolve youth justice, probation and policing. The remainder of this part of the report summarises the progress we have made in each of these areas.

Our approach has predominantly involved commissioning experts to undertake reviews in these areas. We have also been supported by our Independent Expert Adviser on Justice Devolution, Dame Vera Baird KC. The purpose of this role is to provide expert support and ensure our emerging plans are put through the necessary scrutiny.

We have continued to engage with other valuable partners, including the Welsh Justice Unions Group and third sector organisations, to ensure the views of the justice practitioners and those with lived experience of the justice system are represented in this work. Both trade unions and third sector organisations play a vital social partnership role and bring a wealth of experience. They also offer a deep understanding of the diverse needs of vulnerable and marginalised populations which will be essential to take into account as part of our preparations.

As demonstrated in the Criminal Justice: reform programmes chapter, Wales is already taking a proactive approach to youth justice issues, particularly in diverting children from entering the criminal justice system.

The operation of the youth justice system requires close collaboration, with responsibilities for services to support children either involved in or at risk of becoming involved in the justice system shared between both the Welsh and UK Governments. This means that delivering positive outcomes requires collaboration across reserved and devolved agencies as well as the third sector. This collaboration is intrinsically made more complex by the current constitutional arrangements, especially where policies require agreement of 2 governments elected on differing mandates for different geographical areas. 

Devolving youth justice services could make the system more coherent and transparent and would allow us to further embed best practice across Wales and build a more consistent approach within Wales as a whole.

In early 2023, we commissioned Dr Jonathan Evans to lead an informal review of the youth justice system in Wales. This was taken forward through a Wales Youth Justice Academic Advisory Group (WYJAAG), which came together in the course of the year, comprising academics and those with expertise in youth justice. The work produced key insights into how youth justice services in Wales could be strengthened and more aligned with Welsh social justice policy. It also posed questions about how public services can work together more effectively in preventing youth crime, as well as how we treat those children who do commit crimes, and indeed their victims.

Our intention is to consult further on the recommendations from WYJAAG and their implications in 2024.

The work of WYJAAG also identified other issues where it is suggested that further research is needed. For example, the group suggested there could be further research into the operation of the youth court and whether there are improvements that could be made to further align the process to the “child-first” approach, and this work has commenced.

Although originally constituted for a single piece of research, we welcome that WYJAAG members have indicated a willingness to continue with the group’s work in perpetuity, under the aegis of the Welsh Centre for Crime and Social Justice.

The practical case for the devolution of probation services was set out in the report of the Commission on Justice in Wales. The delivery of probation services in Wales is inextricably linked to devolved services, most notably, health and social services, education, learning and skills and housing. Aligning probation services to devolved services provides opportunities to prevent offending and maximise rehabilitation. For example, we would be able to ensure unpaid work schemes are aligned to existing support and offer the opportunity for individuals to improve their skills to maximise future employability.

As demonstrated throughout the first part of this report, a prevention framework has been developed in Wales as a result of a national strategic agreement and significant funding from the Welsh Government.

In the shorter-term, transferring the responsibility for the delivery of probation services would allow us to have greater control over spending across devolved services to further embed prevention principles across the whole system.

In the longer-term, we envisage a programme of reform. We wish to promote a probation service designed to integrate into the Welsh Government police framework which will make a significant contribution to social justice. A future probation service in Wales should be rooted in communities and knowledgeable about the communities it serves, offering robust community programmes that effectively address offending behaviours, thus reducing the risks of victimisation and fear of crime.

For the past 2 years, we have been working with the Probation Development Group (part of the Welsh Centre for Crime and Social Justice), an independent network of academics, experienced managers and practitioners with experience in probation, to advise on the future vision for probation in Wales. The group has produced academic papers on aspects of the possible role of probation which are being considered as part of the ongoing justice devolution work programme. To complement this work, we commissioned the Wales Centre for Public Policy (WCPP) to take forward a specific piece of research. They will draw on existing evidence and host discussions with relevant experts to outline options for probation devolution to Wales.

Devolving policing would build on joint work we are already taking forward with policing partners, including through the Criminal Justice Board for Wales Anti-Racism Taskforce and our Blueprints for Youth Justice, Women’s Justice and Violence Against Women, Domestic Abuse and Sexual Violence. We value the pro-active and collaborative approach the police are taking in this area, which is building public trust and supporting policing by consent.

However, if policing were to be devolved, this approach would be integrated under a single government, rather than being delivered as part of the current system, where responsibilities are split across the UK and Welsh governments. Devolving policing would support a more focussed, integrated approach to these issues and further build on the work we are already taking forward together.

The operational independence of the police would be an important aspect of this approach, drawing on and consolidating our longstanding tradition of effective partnership working together to prevent crime and keep communities safe.

In November 2023, we appointed Carl Foulkes, former Chief Constable, North Wales Police, to lead on work to develop a future vision for policing in Wales. The work has involved extensive consultation with key stakeholders across Policing in Wales, public services and the third sector. The work will be used to inform a long-term vision for what a devolved policing service in Wales could look like, considering the possible policing models and relationships with existing infrastructure.