Silk Commission urges phased approach to devolution of justice in Wales

The Commission on Devolution in Wales has called for a phased approach to the devolution of the justice system as part of a package of measures aimed at delivering a “clear and stable” settlement better serving the Welsh people.

The Silk Commission – named after its chair Paul Silk – said the youth justice system should be devolved immediately. A feasibility study for the devolution of prisons and probation would then follow.

The report, Empowerment and Responsibility: Legislative Powers to Strengthen Wales, also called for the completion and implementation of a review of other aspects of the justice system by 2025.

The Commission said: “We believe that there is not a broad consensus in favour of wholesale devolution of the justice system at the present time. However the youth justice system should be devolved, given its close links with local government and other devolved functions. Following the devolution of policing, there should be an implementation review for devolving probation and prisons.

“There is also a case for further administrative devolution in the courts system and judiciary, particularly as the volume of Welsh law develops; and the case for legislative devolution should be reviewed within ten years. We would expect a debate to develop in the future about how far a distinctive Welsh legal system might emerge over time.”

The report’s other justice-related recommendations include:

  • The creation of a Welsh Criminal Justice Board, bringing together both Governments and their relevant agencies.
  • Further devolution by: the various divisions of the High Court sitting in Wales on a regular basis to hear cases that arise in Wales, other than in relation to highly specialist cases; a High Court office being established in Wales to coordinate High Court sittings in Wales; the divisions of the Appeal Court continuing to sit in Wales on a regular basis to hear cases that arise in Wales; and High Court and Appeal Court judges being allocated to sit in Wales only if they satisfy the Lord Chief Justice that they understand the distinct requirements of Wales.
  • There should be a review within ten years of the case for devolving legislative responsibility for the court service, sentencing, legal aid, the CPS and the judiciary to the National Assembly.
  • There should be at least one judge on the United Kingdom Supreme Court with particular knowledge and understanding of the distinct requirements of Wales.
  • Welsh Ministers should continue to have competence on tribunals in devolved areas of policy; there should be clarity and coherence in the relationship between devolved and non-devolved tribunals; the process of appointment, training and terms and conditions of employment should be consistent; and tribunals should be seen to be independent of government.
  • Until and unless legal aid is devolved, the UK Government should fully consult the Welsh Government and other key stakeholders to ensure that the operation of the legal aid system reflects Welsh circumstances.
  • Welsh Ministers should be able to propose law reform projects to the Law Commission on a similar basis to UK Government Ministers.
  • There should be improved access to all legislation in areas of devolved powers through publication of a consolidated body of Welsh primary and secondary legislation.
  • There should be a periodic report by the UK Government in consultation with the Welsh Government to the UK Parliament and to the National Assembly on how access to justice is improving in Wales; and there should be regular dialogue between the Lord Chief Justice of England and Wales and Welsh Ministers on the administration of justice in Wales.

The report makes 61 recommendations across a range of areas such as intergovernmental relations, economic powers, transport, natural resources, broadcasting, policing, health and social security, and public sector capacity.

The timetable for implementation is set over ten years and would include a Wales Bill in the next Parliament.

The Commission described the current devolution settlement as “overly complex” and said there was a need for Governments and institutions to work together better. Support for further devolved powers was broad, it added.

Under its proposals there would be a move from the current conferred powers model of devolution to a reserved powers model setting out the powers which are not devolved rather than the powers that are.

“This would clarify responsibilities and allow more effective, confident governance,” the Commission said. “It would also bring Wales into line with the other devolved administrations of the United Kingdom." 

The report also makes recommendations in relation to:

  • The promotion of more effective scrutiny and performance within the National Assembly. These include short-term improvements – “such as greater flexibility on the number and size of committees, increased numbers of research staff and better use of Assembly Members’ time” – as well as more backbench Members of the National Assembly.
  • More effective relations between legislatures and Governments. A Welsh Intergovernmental Committee to oversee the Welsh devolution settlement is proposed. 

Paul Silk said: “At a time when constitutional issues are high on the agenda in the United Kingdom, we have agreed recommendations that will provide a stable and well-founded devolution settlement fit for the future. It will give Wales a lasting settlement that allow political decisions to be made in a democratic and accountable manner. 

“Through a phased ten-year programme of reform, it will create a stronger Welsh democracy and bring Wales more in line with the other devolved countries of the UK.”