The following amendments have been selected: amendment 1 in the name of Darren Millar, and amendment 2 in the name of Caroline Jones. If amendment 1 is agreed, amendment 2 will be deselected.

The next item is a debate on the report of the Commission on Justice in Wales. I call on the First Minister to move the motion, Mark Drakeford.

Motion NDM7260 Rebecca Evans

To propose that the National Assembly for Wales:

1. Welcomes the landmark report of the Commission on Justice in Wales and the unprecedented body of evidence it generated, and thanks the members and staff of the Commission for their work;

2. Recognises the dedication and commitment to public service shown by the many people and organisations who work within the justice system, but nevertheless notes with dismay the central finding of the Commission that the people of Wales are let down by their justice system;

3. Supports the Welsh Government’s intention of both taking forward those recommendations within its current competence and working with other bodies to take forward recommendations within their responsibility;

4. Notes the Commission’s key finding that in order to make a lasting difference to the delivery of justice in Wales, policy must be determined and overseen in Wales; and

5. Supports the devolution of justice and policing, and full funding for each as a way of properly aligning the operation of the justice system with the wider policy objectives for Wales agreed by this Assembly.

Motion moved.

Thank you, Llywydd. I'm very pleased that we've found the time to hold this important debate on the Commission on Justice in Wales's report. It's an opportunity for us to discuss the ambitions that we have for the justice system in Wales and also to ensure better outcomes for the people of Wales.

As I have said in this Chamber previously, the commission's inquiry is the most comprehensive ever undertaken of the justice system in Wales. It looked at the current status of all parts of our justice system. As the commission's report states, there are some areas of good practice in the justice system in Wales at the moment. It works effectively in partnership, with the commitment of people involved with youth justice services; it's had a positive impact on reducing the number of children held in custody. On an operational level, policing often means interaction between police and institutions providing education, social care, health, housing and other services that are devolved. Blueprints for youth justice and for offences by women are other examples of effective partnership working in order to provide effective justice services in Wales. We do this despite, and not because of, the complex situation that currently exists in Wales in terms of policy and funding for justice under the current devolution settlement. 

So it is, Llywydd, that, while there are areas of good practice across the justice system, there are significant failings that need to be addressed. We cannot get away from the first paragraph of the report and its conclusion that Welsh citizens are not currently well served by the justice system. It is too often remote, unfeeling, inflexible and confusing. It can also be ruinously expensive. To many people in Wales today, the justice system as a protection when they need it is theoretical rather than real.

Making rights a reality was a fundamental pillar of the 1945 welfare state. Legal aid, when it was introduced in 1949, covered 80 per cent of the population. Seventy years later, in 2019, the commission found a very different picture. Budget cuts by the UK Government have seen what the commission calls growing 'advice deserts' in areas of rural and post-industrial Wales, where people can find it difficult to access legal advice and services at all. And at the same time, there are increasing numbers of people representing themselves in courts and tribunals.

Legal aid is an entirely reserved responsibility, but the commission found that it is decisions made here by this Welsh Government and this Senedd that are having to plug the emerging gaps. The single Welsh advice fund now makes over £8 million available to advice services, which have become an essential part of our justice system. And that is only one example of where money provided for devolved services is having to be diverted to meet the urgent needs of Welsh citizens in their interactions with the justice system. Indeed, the commission reported that some 38 per cent of total justice expenditure in Wales in 2017-18 was derived from the Welsh Government or Welsh council tax payers. We could use that money to make different decisions here in Wales. 

Llywydd, as Members know, research undertaken by the Wales Governance Centre suggests that Wales has one of the highest imprisonment rates, if not the highest, in western Europe. In the case of women in the prison system, the majority are convicted of minor offences and serve short sentences, but sentences nevertheless that bring disruption to home life, loss of employment and housing, and impacts on the care of children or elderly relatives. For women in Wales, the position is worse because all women imprisoned are imprisoned in one of 12 women's prisons in England, making family contact more difficult for women from Wales and exacerbating the problems that they and their dependents face. We could and would do things differently in Wales.

Or if we look at the experience of children who are separated from their peers in young offender institutions, as recently highlighted by HM Chief Inspector of Prisons, separation in such circumstances should be for the protection of children, but the chief inspector found that most separated children are effectively held in harmful solitary confinement with little human contact and in conditions that risk damaging their mental health. Again, we could and we would do things differently and better in Wales.

How then are we taking the commission's report forward? We face three essential tasks: to enact those recommendations that fall directly to the Welsh Government; to provide co-operative leadership in those areas where the report's proposals rely on other Welsh actors; and to oversee discussions with the new UK Government on the Thomas proposals. Work on all three counts has already begun.

We are exploring apprenticeship provision and how we ensure the long-term viability of legal practices across the country. We are taking forward the commission's recommendations on legal education and establishing a law council of Wales. The Law Commission will advise us on a number of the recommendations relating to the areas of the justice system that are already devolved, particularly the Welsh tribunals, and we are learning the report's lessons in how we might reduce the number of children in care.

Our initial assessment is that some two thirds of the commission's recommendations potentially require the co-operation of the UK Government to take them to implementation. This is not a surprise, given that justice is generally a reserved matter. I set out the importance of transferring responsibility for justice to Wales in my very first correspondence with the Prime Minister after his re-election. I have also written to the justice Secretary, who said only recently that every UK department should see itself as a justice department, that decisions about how the justice system operates need to be aligned with other social and economic priorities, and co-ordinated with the delivery of public services such as health and education. 

In Wales, of course, those services are devolved, and the Thomas commission report tells us that where powers sit is not a question of abstract theory. There are real, inevitable and unnecessary practical challenges arising every day that flow from the current division of responsibilities between Westminster and Wales, despite all the efforts that are being made in Wales on all sides to ameliorate the impacts of those challenges.

Llywydd, I hope that the Senedd will join with me in thanking Lord Thomas of Cwmgiedd, the commissioners and the staff of the commission for their work and for drawing up this notable report that provides a robust vision for us for justice in Wales.

Today's debate here is important because it will reveal where the centre of gravity rests on these matters in this Chamber. Amendments laid already demonstrate where the forces of resistance to change lie. Let me be clear: progress cannot be made by sticking our heads in the sand and pretending, contrary to all the evidence Lord Thomas and his commissioners assembled and analysed, that everything is fine and should simply stay the same.

But nor will change happen simply by shouting louder down the M4 megaphone. We face a UK Government with an 80-seat majority. A strategy of simply banging ever louder on the door is unlikely to succeed. To the pitch of our voice will have to be added the persuasiveness of our argument. And that of course is why the commission's report is so vital.

It proceeds not simply from a constitutional perspective, but from a practical demonstration of the ways in which responsibilities, budgets and accountable decision making could be better aligned, better to serve the interests of Welsh citizens. That is why we ask the Senedd today to reject the amendments, to support the motion, and to take a step towards adding criminal justice to the ambitions for economic, social and environmental justice that already matter so much to people in Wales.

I have selected two amendments to the motion. If amendment 1 is agreed, amendment 2 will be deselected. I call on Mark Isherwood to move amendment 1, tabled in the name of Darren Millar. Mark Isherwood.

Amendment 1—Darren Millar

Delete all and replace with: 

To propose that the National Assembly for Wales:

1. Notes the report of the Commission on Justice in Wales and recognises the dedication and commitment to public service shown by the many people and organisations who work within the justice system.

2. Regrets failings in the criminal justice system in Wales, where the Welsh Government has responsibility for a range of key services.

3. Welcomes the UK Government’s commitment to deliver offender management services in Wales which reflect the devolved responsibilities of the Welsh Government.

4. Notes that the cross-border nature of criminal activity must be central to the operation of justice and policing in Wales.

Amendment 1 moved.

Diolch, Llywydd. We recognise the dedication and commitment to public service shown by the many people and organisations that work within the justice system, but regret failings in the criminal justice system in Wales where the Welsh Government has responsibility for a range of key services.

The Thomas commission on justice report refers to the

'distinct and developing social, health and education policy and services' in Wales, and states that

'Whilst there are areas of good practice across the justice system which can be built on, serious failings must be addressed.'

However, instead of joining up the dots, it then proposes the devolution of justice and policing, ignoring the developing police and justice policy agenda at UK level that embraces both the geographic and demographic realities and Wales's devolution settlement.

Will the Member give way?

I'll have one, yes.

You say it's being developed at the UK level, it's not being developed at the UK level, because these matters are devolved in both Northern Ireland and in Scotland. They've been delivered. [Interruption.] Yes, and Manchester and London to some extent. [Interruption.] And Jersey, okay. We could be here a long time. It was meant to be an intervention rather than a speech. Do you understand that these matters are simply in the minds of a few individuals in Whitehall and Westminster?

No. There is a huge number of innovative things happening in criminal justice in Wales, but one of them is not devolution. 

So, as the Wales Governance Centre found, Wales has the highest rate of imprisonment in western Europe, and although the total number of prison sentences rose in Wales between 2010 and 2017 they fell by 16 per cent in England, where they still controlled the services that the Welsh Government is responsible for in Wales. The report's author stated that

'wider research is need to try to explain Wales' high rate of imprisonment.'

This is particularly relevant given that many of the services required to manage offenders, ex-offenders and to promote rehabilitation are already devolved. Such a difference in delivery, within what is a shared criminal justice system, provides yet another reason why the calls for devolution of criminal justice should not be answered.

The UK Government's commitment to deliver offender management services in Wales that reflect the devolved responsibilities of the Welsh Government is to be welcomed. In 2018, I attended the stakeholder engagement event held in Wrexham by HM Prison and Probation Service in Wales as part of the consultation on future probation services in Wales, under which all offender management services in Wales will sit within the National Probation Service from 2020.

HM Prison and Probation Service in Wales will explore options for the commissioning of rehabilitative services such as interventions and community payback. They will build upon the unique arrangements they already have in Wales through their established prison and probation directorate, and on existing successful local partnerships, better reflecting the devolved responsibilities of the Welsh Government. As we heard, these proposals will allow increasing integration across prisons and probation in Wales, preventing victims by changing lives, with real input from the third sector, utilising people capital.

Instead of recycling this redundant motion, we therefore need the Welsh Government to provide us with a progress report on what is really happening regarding this. This is especially the case in the context of HM Prison and Probation Service's 'Probation Reform Programme' 2019 document, which followed the consultation paper on the future of probation and describes how the new model will differ in Wales. As this states:

'the Welsh Government has legislative competence in respect of devolved matters including health, housing, social welfare and education, and this presents a different delivery landscape for probation services in Wales. The justice devolution settlement allows for distinct arrangements for probation that meet the needs of Wales.'

HM Prison and Probation Service in Wales

'is configured differently to reflect this, with its structure combining prison and probation services within one directorate and alignment in the geographical area'.

Of course, the cross-border nature of criminal activity must be central to the operation of justice and policing in Wales. Calls for this to be devolved fail to acknowledge that criminal activity does not recognise national or regional boundaries. Unlike Scotland or Northern Ireland, 48 per cent of people in Wales live within 25 miles of the border with England, and 90 per cent within 50 miles. The Thomas commission on justice report only includes one reference to any cross-border criminality, in the context of county lines along the M4 corridor and in north Wales. The solution it proposes is joint working across the four Welsh forces in collaboration with other agencies, but no reference to partners across the border.

Well, I recently visited Titan, the North West Regional Organised Crime Unit, established in 2009 as a collaboration between the six police forces in north Wales, Cheshire, Merseyside, Greater Manchester, Lancashire and Cumbria to tackle serious organised crime that crosses county borders in the region. We heard two weeks ago that all north Wales emergency planning is done with north-west England, that 95 per cent or more of crime in north Wales is local or operates on a cross-border east-west basis, that North Wales Police have no significant operations working on an all-Wales basis, and that evidence given to the Thomas commission by the chief constables and police and crime commissioners in Wales was largely ignored in the commission's report.

I call on Mark Reckless to move amendment 2, tabled in the name of Caroline Jones. Mark Reckless.

Amendment 2—Caroline Jones

Delete points 3, 4 and 5 and replace with: 

Opposes the devolution of justice and policing.

Welcomes the UK Government increasing funding for policing.

Calls on the UK Government to increase funding to improve the justice system.

Amendment 2 moved.

Diolch, Llywydd. I move the amendments in the name of Caroline Jones.

We oppose the devolution of justice and policing. I was pleased to take the time to consider this very impressive report in detail before saying that. I think there is an analogy between the EU and devolution. It comes where there's an interface between, here, devolved and non-devolved services. Clearly, where you have such an interface, there are always going to be challenges about managing that interface.

But the fact that there are difficulties identified does not of itself justify the conclusion that therefore the non-devolved services here, justice and policing, must be devolved. It could equally logically make the case for those services that are currently devolved but have difficulties when they're interfacing with non-devolved services to be un-devolved. But in this place, it only ever moves one way. Every argument of any difficulty in an interface becomes one for more and more devolution. Just as we saw in the European Union, for any problem, the proffered solution was always one of more Europe.

And that, I think, is in part why the Brexit referendum vote went as it did. Our inability to have a stable devolution system, to allow people to be comfortable with devolved institutions without seeing it as a slippery slope where it will always, always be more and more powers towards greater autonomy and, potentially, independence, is one of the reasons why this place is not held in greater esteem across Wales.

We don't propose to support the Conservative amendment, in part because I think point 2 is very unfair to Welsh Government. You say that you regret the

'failings in the criminal justice system in Wales', and certainly, there are huge failings in this book; it is very, very apparent. Yet, you then say,

'where the Welsh Government has responsibility for a range of key services.'

And if you were to be fair, you would go on and say, 'but the UK Government has responsibility for many more.' 

I do feel that this commission report is an indictment of the criminal justice system as it has been working across England and Wales. Justice is one area where I'm concerned that the austerity process has gone too far. I think it does need more money for the operation of our courts, and the case is made also here for some areas in legal aid. I think the Conservative Government in Westminster has woken up to austerity and cuts in policing having gone too far, hence their promise for 20,000 more officers across England and Wales, which we support. 

But they should also look at what's happening in the justice system and, rather than just opposing this because it's more devolution, actually get Ministers in Westminster to look at this report, understand the indictment it makes of the system of justice in England and Wales, and tell us what they're going to do about it. And part of that may involve more money. 

I give way to the ex-First Minister.

I'm grateful to the Member. It will surprise him, no doubt, that I'm about to agree with him, as somebody who worked in the criminal justice system for a long time. When I was in practice in the early 1990s towards 2000, we used to look at other countries where people had no access to legal advice and be appalled that they would be representing themselves in quite serious matters in court with no legal representation whilst being prosecuted by a professional prosecutor. Does he agree with me that that's exactly now where we are in England and Wales and that we've gone back some 200 years?

I concur in many circumstances that the Member is correct in his diagnosis. 

In this report, reading chapter 11 on the Welsh language and then chapter 12 on the governance of professions, I'm not convinced that they are linked sufficiently. Currently, legal exams are not available, at degree level at least, in Welsh. This proposes that they should be and people should be able to qualify solely through the medium of Welsh and solely demonstrate proficiency through examinations in Welsh, but then proposes that they should continue to have a joint profession and that we have the Solicitors Regulation Authority and the Bar Standards Board regulating on that basis.

But if people from Wales who've qualified are to practice in England but have only demonstrated proficiency in Welsh through the education and examinations, is it reasonable to expect those England-and-Wales regulatory bodies to act in that way?

Then, why—[Inaudible.]—for English?

Well, that's entirely appropriate if we have a system for Wales. But I would question whether it is a reasonable ask for an England-and-Wales regulator. Although, I would support greater engagement with the Assembly on these issues as proposed, and perhaps these can be discussed.

I continue my disappointment with the Supreme Court and the arrangements there about the appointments. The report gets it wrong in terms of describing the appointment system and therefore fails to make the appropriate arrangements. It is not right that we have the Scottish and the Northern Ireland commissions represented on every Supreme Court appointment, always having 40 per cent of the say. I think we should change that so at least, on the England and Wales commission, we have this one lay member with appropriate knowledge of Welsh law. I think they should be there as a second member from the England and Wales commission, and I also think, adding to that, a seventh member of that panel; I think we should have the chairman of the justice select committee elected by all MPs of the House of Commons in a secret ballot.

I don't want to go down the route of the US and the Supreme Court and the politicisation there, but I think having one of several members who has got that position would help deal with some of the concerns about appointments in the judiciary, and would be better than the current system, which can allow for four judges to be making the appointments out of a commission of five. That's not appropriate and I think there should be reform in this area.

Finally we have the opportunity to discuss the devolution of justice and policing to Wales—that's thanks to the landmark report by the Commission on Justice in Wales. I'd like to thank the former Lord Chief Justice, Lord Thomas of Cwmgiedd, and all the commission members, whose conclusions and recommendations in this report were unanimous. The report offers both a description and a critique of how that public good—justice—operates in Wales, and more importantly, how it is experienced by people in Wales. There's a great deal of cross-party agreement on this issue, and room for co-operation in and between Westminster and the Senedd.

Over the last 21 years of devolution, we've seen the power of our National Assembly expand and its confidence as an institution grow. Come 2020, Welsh Government policy has a greater direct impact on the lives of people in Wales than ever before, yet we're still operating without a corresponding legal jurisdiction, despite having full legislative power in our Senedd. This creates duplication, lack of accountability, additional costs without transparency and plenty of confusion. The report says that the people of Wales both need and deserve a better system.

I'd like to focus on criminal justice, having been a probation officer. The report states, and I quote,

'If criminal justice is to be effective, most particularly in its treatment of victims, in policing and in the administration of the sentences of the courts (the principal role of the prison and probation services), it must be closely integrated with services which are the responsibility of other parts of local, devolved and central government – for example, health, drug and alcohol misuse, housing, education, employment, accessing benefits and managing debt and other welfare services.'

Dr Rob Jones from the Wales Governance Centre has shown that Wales has the highest imprisonment rate in western Europe. Whilst imprisonment dropped by 16 per cent in England between 2010 and 2017, it increased in Wales by 0.3 per cent.

Will you take an intervention?

Yes.

Just based on those stats alone, would you agree with me, therefore, that we should do everything that we can against the new UK Minister who said that he would 'love' to have a new super prison here in Wales?

Yes, I agree with that point, because Jones's work exposed that the Government plans for additional prison places will see Wales become a net importer of prisoners. We simply don't need any more prisons in Wales, so you're absolutely right to challenge the justice secretary on that point, that he wants to build another prison.

The commission on justice notes that those charged are disproportionately more likely to come from a black, Asian and minority ethnic group. And for women, the current system is beyond inadequate. There are no facilities at all for women offenders in Wales, and it's perhaps in relation to women's justice that a public health approach is most needed. According to the Thomas report, over half the women who are in prison have experienced domestic rape—half. Fifty-three per cent have noted that they have been mistreated emotionally, physically or sexually as a child—53 per cent. Devolving justice to Wales gives us the opportunity to break that cycle by uniting our health and social services with our justice policy. Devolution of the criminal justice system would also enable us to ensure that well-trialled perpetrator programmes were fully available within prisons and within public probation teams to reduce the risk of sexual offences being repeated. Changes could be made to practices within the police, the Crown Prosecution Service and the court system to address those appallingly low rape conviction rates.

Thomas concluded that only full legislative devolution combined with executive powers will overcome the failings of the current system. We can build a new system that works, a system free from the patriarchal and misogynistic binds that result in such historically low rape conviction rates. Why would we not want to do that?

Finally, I turn to legal aid. The deep cuts made to legal aid in 2012 have led to advice deserts, where justice for some people is simply not available at all. Before the cuts, there were 31 providers of publicly funded benefits advice; now there are just three. The number of firms providing legal aid has fallen by 29 per cent, compared with 20 per cent in England. This is not justice. An increasing number of people now represent themselves in courts and tribunals, which leaves them significantly disadvantaged. Large chunks of the legal profession have been destroyed, proven by the mere 68 criminal pupilages advertised in England and Wales outside the Crown Prosecution Service in this year's round of applications, and only two of those are in Wales.

In the time I've had available—and I do realise I've gone over time—I've only been able to touch on limited matters that were raised in this commission's report, but suffice it to say the current system is clearly not working. For too long, Wales has put up with the complexities that lead to the people of Wales being systematically let down. Plaid Cymru has long argued that it's time for Wales to take responsibility for justice and for us to have our own legal jurisdiction. With this report, we can collectively call for the devolution of justice, not simply because we believe in the principle, but because the evidence shows that this has the chance to dramatically improve the lives of people in this country, and we should do it. 

As with others in this debate, before coming to the Assembly, I had direct experience of the criminal justice system having been a solicitor in a legal aid practice dealing with criminal law, amongst other matters. So I do have direct experience, seeing people who were accused in my office, in police stations, in prisons and, obviously, representing them in court. I must say that I would echo much of what I've heard here today in terms of criticism of the system. I do believe that it's unproductive, wrong-headed and, indeed, immoral in the way that it operates. Our First Minister said that we would do things, were we to have devolution, differently and better, and I'm absolutely convinced that that would be the case. I believe that it would, in fact, be difficult not to do things better than the current system, and I have full confidence that we would obviously go far beyond that yardstick in delivering criminal justice differently here in Wales. 

I think Leanne Wood made a very strong case. I was going to mention many of the matters that Leanne did in terms of who is at the receiving end of the inadequacies and the failings of the criminal justice system. I believe, in terms of social class, in terms of ethnicity, in terms of gender, we see people who are disadvantaged suffering further disadvantage through the way that the system operates. I think it's a widely held view that we could do much, much better. It's crazy, isn't it, for Wales to be imprisoning more of its people than virtually any other part of western Europe? What that does is brutalise people; it ruins their life chances when they're incarcerated unnecessarily, it leads to more victims of crime because of that brutalisation and a lack of effective rehabilitation given the state of our prisons, which are so overcrowded and the people in there are struggling to deliver a service, struggling to rehabilitate and doing that in conditions that make it very, very problematic indeed. So it really is nothing short of a horror story and we really could do so much better. That would be such a benefit to people unnecessarily imprisoned, their families, our communities and, of course, victims of crime, because if people are not being rehabilitated properly because the service cannot operate within the conditions that exist, then there are going to be future victims of crime and many more victims than need be the case. 

We also know, don't we, that many of the people in our prisons have mental health problems, they have substance misuse problems—illegal drugs and alcohol. Many of them are illiterate and innumerate; their skills are very low. These are people who are being failed by the system and are then, in some cases, imposing further misery on society in general because of that system failure.

I think, given that sort of background, Llywydd, it really is difficult to perceive of a devolved system that would not lead to very substantial and meaningful improvements. And, of course, a compelling case is made by the justice commission and Lord Thomas in terms of how we could operate so much more effectively. So, I think with that background and what we've heard from most of our contributors to this debate today, we badly need devolution of justice in Wales. If we're not to achieve that in the short term, indeed, then we're going to see these failings replayed endlessly with all the misery and suffering that is involved for our communities. The case is strong and, I would say, unanswerable, and I'm just really impatient, as I know many others are here today, Llywydd, to see progress on this report and to see implementation of the recommendations, even if it is in terms of those that are more immediately deliverable in the short term, to be followed by further progress thereafter. We need to see this change and we need to see it as quickly as possible.

Llywydd, the law consists of the rules of society that enable us to live, work and enjoy life together, and the principles that underpin our law are based on the values of our society and they are bound together in a legal framework, underpinned by what we call the rule of law. Today, I'm pleased to participate in this debate as the Chair of the first ever Welsh parliamentary committee dedicated to the scrutiny of our constitution, legislation and now justice. So, this is a historic first for Wales, not only in our development as a parliament creating laws, but also in the emergence of our own legal system.

My committee will be developing a programme of work aimed at scrutinising our existing Welsh judicial system of tribunals and quasi-judicial bodies, and exploring how areas of Welsh policy interact with the existing England-and-Wales legal jurisdiction. We will need to develop an understanding of certain underlying principles if this work is to be successful. So, the issue of the devolution of justice is not about a power grab between Westminster or between this place, so opposing change with phrases such as we heard during the Wales Act 2017, that the England-and-Wales legal system has served us well, is to fundamentally misunderstand the nature of the administration of justice, which is really about ensuring that cases are heard and efficiently administered as close to the people as possible, by judges and by lawyers who know the local communities and understand the relevant law.

Our current system of legal administration is not fit for purpose. Legal aid cuts by the UK Government following the 2012 legal aid Act and court closures have decimated access to justice for ordinary people. Half of all magistrates' courts in Wales have closed, local justice has become a thing of the past, the majority of the poor and vulnerable no longer have access to proper justice in many of the important areas that affect their lives. As the Thomas commission says, the significant cuts to legal aid have hit Wales hard and proper justice is not available. I agree with that comment.

When the legal aid system was set up in 1949, there was an understanding that access to justice was a fundamental component of justice. As Viscount Simon said in that debate all those years ago, establishing access to justice is an essential reform in a true democracy. So, we must now examine how we might create our own new Welsh legal aid and advice and representation system.

We must also re-establish the link between social policy and the administration of justice. This Parliament has responsibility for children, social care, housing, social services, drug and alcohol policy, education, training and so many other areas. The administration of these services goes hand in hand with the legal system we operate. Poverty and social policy are key factors in the delivery of social and administrative justice that the separation of responsibility for devolved policy in these areas from justice makes absolutely no sense. They need to work and to develop hand in hand.

Thank you very much for taking the intervention.

I'm not here to defend any cuts to legal aid by the UK Government but, obviously, any additional money to be spent on a devolved system of justice will depend on the Barnett formula. Isn't there an argument for saying that we should be spending the money that we do have, focusing more of that on preventing people entering the justice system in the first place? 

I think there is an argument that our justice system must be fit for purpose, and any society that does not have a fit justice system clearly is failing. That must be our priority, and it's why this report was commissioned and why its conclusions are so important.

We need to look in particular into the operation of our existing Welsh tribunal system, the various Welsh ombudsmen and our coroners' courts, which are all funded by the Welsh or local government, and which must operate independently of Government. Family justice, youth justice and probation services, for example, are all areas that have a direct synergistic relationship with devolved policy. One cannot work without the other and we need to resolve this conundrum. As the report says,

'The people of Wales...need and deserve a better system. Justice is not an island and should be truly integrated into policies for a just, fair and prosperous Wales.'

That must be our objective and that is what the committee will focus on.

Thanks to the First Minister for bringing today's debate, which is, indeed, an important one, and I've listened carefully to what other Members have been saying.

It's clear that one key issue is that of funding. We've heard a lot about the underfunding of things like legal aid and the running of the court service in Wales, and these are very real issues, but they're also issues in England. They are not problems unique to Wales. There is no good reason to believe that even if the justice system was more devolved to Wales there would be more money available.

I always remember what a former Cabinet Minister in this place used to say in the Chamber about calling for more devolution. 'Be careful what you wish for or you will end up with the UK Government devolving the issue but not fully funding it', he would say. That was the advice we regularly heard from Carl Sargeant, and we also heard similar advice last week from Chris Bryant, the Labour MP for the Rhondda, when this subject was debated in Westminster Hall. 

However, I'm not too convinced that the UK Government is very interested in engaging with this report. When we had a statement on this subject here in the Chamber last November, the First Minister said that the publication of the report was a watershed moment, and we've recently heard a couple of minutes ago from Leanne Wood who said something similar; I think she used the phrase that it was a 'landmark' moment. However, when a UK Government Minister, Chris Philp, spoke on the same report last week in Westminster Hall, he said the UK Government wasn't even going to respond formally to the recommendations. That's how seriously the Ministry of Justice and the UK Government in general takes this report. 

We have to bear in mind that this is a report that wasn't even commissioned by the UK Government, which has responsibility for justice. It was commissioned by the then First Minister in this place. There are question marks over its independence given the close links between our former First Minister and the chairman of the commission, Lord Thomas of Cwmgiedd. [Interruption.] No, I won't. Carwyn Jones appointed Lord Thomas to chair that commission—.

Will you take an intervention? 

No. No.

Carwyn Jones—[Interruption.] 

Are you taking an intervention? 

I'm not, Llywydd. 

The Member is not taking an intervention. [Interruption.] 

I wouldn't if I was you. I wouldn't.

Yes, and I'm trembling, son. 

Carwyn Jones appointed Lord Thomas to chair that commission and since then, Lord Thomas, who doubles up as chancellor of Aberystwyth University, has overseen the appointment of Carwyn as professor of law at that august institution, which is all a rather convenient arrangement for the two of them. 

On a point of order—

Allow the Member to finish his contribution, and I'll address what might have been said at that time. Finish your contribution please, Gareth Bennett. 

Diolch yn fawr. 

The point is we know that Lord Thomas and Carwyn Jones are singing from the same hymn sheet, but what has their song got to do with the people of Wales? Where is the democratic consent for these greater powers for the Assembly? Devolution of justice was not proposed in the last Welsh Assembly Labour manifesto of 2016, and it wasn't even proposed in Welsh Labour's general election manifesto just a few short weeks ago.

According to polls published in the last week, only a third of voters in Wales want more powers to flow here, so there is no democratic mandate for the transfer of more powers to this Assembly. Yet, the parties of the left, Labour and Plaid Cymru, who are in agreement—[Interruption.] Who are in agreement—[Interruption.] The parties of the left, Labour and Plaid Cymru—[Interruption.] The parties of the left, Labour and Plaid Cymru, who are in agreement once again today, are always calling for more devolution. Today, I will be opposing the motion and supporting the Brexit Party amendment, and I would say one thing to the Members here today who feel enthused about this report: be careful what you wish for.

I will review the Record after that contribution because it has clearly raised a reaction in the Chamber. I'm very sorry not to have heard directly what was said at the time. So, I will need to review it and decide on whether what was said or suggested was in any way inappropriate. I now call on Carwyn Jones. 

Well, all I can say—[Interruption.]

Will Members who are shouting from a sedentary position, who've just walked in now, just before 6 o'clock, please listen to the debate and what's happening here at this point? And I'm looking at you, Mr McEvoy. Carwyn Jones.

Diolch, Llwydd. [Interruption.] The Member has just walked in; perhaps he should do the job he's paid for and actually be in this Chamber from the very start if he wants to take part in this debate, rather than sitting there grumbling like some kind of embarrassing elderly relative.

But let me take, first of all, what Gareth Bennett has said. All I can say to him is: the Lord Chief Justice of England and Wales is somebody who has extensive experience in the criminal justice system. He has extensive experience of nothing when it comes to the criminal justice system, particularly from the side of advocacy. A world of paranoia exists on that side of the Chamber. I'd hate to be inside their heads and their worlds, and I feel sorry for them.

The devolution of the criminal justice system is a major undertaking. It cannot be done overnight, it can only be done over a very long period of time, and it would take a great deal of preparation. Let's be clear about that. This is not something that can happen overnight. But if we look at Wales, Wales sits in the only jurisdiction in the common law world where there are two Parliaments. It doesn't exist anywhere else. Every single time a law-making Parliament has been set up anywhere in the Commonwealth, jurisdiction has always followed. Northern Ireland is an example within the UK. This is not radical—this is something that's normal. The abnormal situation is the situation in Wales.

This is the only Parliament in the common law world that does not have jurisdiction to enforce its own laws. It relies on another Government and its agencies to enforce the laws that are actually passed in this place. That cannot be right. We would not accept the European Court having complete jurisdiction on how to enforce laws passed in the UK—of course not—so why then is that not correct for Wales? It surely must be right that, in principle, where laws are passed by a Parliament, that Parliament should have the jurisdiction to enforce those laws. Otherwise there is a jaggedness to the system that cannot be corrected.

If I turn to justice policy, the point's been well made about the lack of access to justice, and that is true. There's no way you can say the criminal justice system in England and Wales is fair, because it's not, and the report says that. It cannot be right that an individual member of the public is forced to go to trial to represent themselves and a professional prosecutor is up against them. Judges have told me this, that they are concerned about how they deal with a situation where they have somebody who is inexperienced compared to somebody who's experienced. Trials last a lot longer, because things have to be explained to people, because they're not familiar with the system.

I heard what Mark Isherwood had to say. He made the case very convincingly, if I may say, for devolution of prisons and the probation service, because he said, 'Well, we don't need it devolved; there's already one system and it already works very well.' If that is the case, surely, if it's already working well in Wales as a national system, then the place for it to be governed from is this place, as the national Parliament of the people of Wales.

And let's bear in mind as well, it's ridiculous that the people of Wales, who speak Welsh, have no right to have a trial in their own language. You cannot have a Welsh-speaking jury—it’s not permitted. If could be done, but it's never been allowed. And that's another point that I think is worth us thinking about, that you do not have the right to a trial of your peers of a Welsh-speaking jury in Wales. And that's never been the case. And that must change.

Turning to what Mark Isherwood said. Can I give you an assurance that if policing was devolved, it's not going to be the case that suddenly there's no co-operation across the border? Of course not. Nobody rational would argue that. And there will be some areas of crime that are so serious that there would have to be co-ordination across the UK and beyond, into Europe. That much is true. But to say that, because crime is cross-border, which is correct, therefore all our policing must be run from Whitehall, is a false argument. Because, if you look at Ireland, where the border is very similar to the border here—Newry and Dundalk are close to each other; Letterkenny and Derry are close to each other; Lifford and Strabane are across the river from each other. So, you do have people living very closely in towns very close to the border. Yet there is a good record of co-operation between An Garda Síochána and the Police Service of Northern Ireland. It's not a problem. For some reason, it is a problem that apparently only exists between England and Wales, but isn't a problem anywhere else—not even within the UK, where, of course, Scotland has an independent police system. No-one's ever said, 'That creates a problem in terms of cross-border co-operation'. So, I find that argument difficult to accept.

In practice, what does this mean? Well, it means, for example, obviously, that we would have control here of our justice system. It does not mean there'd be no co-operation; it does not mean we would build a justice wall between ourselves and England—of course not. You would not need separate professions. I think that's right; you could have professions that could regulate themselves and be cross-border. You would not necessarily need a separate court system. Lord Justice Thomas has said in the past that the idea of a distinct jurisdiction means that you can say, 'Okay, we'll share a court system and share the costs'. Because, at the moment, we don't pay anything towards the justice system, yet we produce laws here that create costs for the Ministry of Justice that they have to pick up every single time. Now, it's very convenient for us, but is that fair in the longer term? A properly shared jurisdiction would see responsibility shared between these two bodies, these two legislatures. I do see the time running out, Llywydd.

And I'd simply say this: as I said before, the abnormal situation is what we have in Wales—a Parliament without a jurisdiction. The abnormal situation is what we have in England and Wales, where we have two Parliaments within the same jurisdiction. And I just make this last point to illustrate to Members what that might mean: the time is coming when it would be possible for someone to be arrested, tried and imprisoned in England for an offence that's not an offence in England, because it's one jurisdiction, and that clearly can't be right in the future, and it's time to make sure that we have better symmetry as far as devolution is concerned and certainly far better symmetry as far as the devolution of justice is concerned.

Like others, I'd like to take the opportunity this afternoon to thank Lord Thomas and his colleagues, his commissioners and the staff that supported them in producing this report. I'd also like to say that I wholeheartedly agreed with the approach that the First Minister outlined in introducing this debate and I hope that we can move progress on this matter with some speed and some urgency.

When I was first appointed with responsibility for justice, I was absolutely shocked at what I saw—absolutely profoundly shocked and moved by the state of the criminal justice system in this country. And this report—Mark Reckless described it as an indictment of the criminal justice system in England and Wales. It isn't: it's an indictment of the system in Wales. The issues that we're trying to grapple with and address here don't exist the other side of the border in anything like the same way. That's not to say I support the approach taken by the United Kingdom Government there, but they do not have the issues that we deal with here. And a senior civil servant put it very well when they said to me that we're in a situation here where the UK Government is unable to deliver policy—completely unable to deliver policy—but neither can the Welsh Government. Neither the Welsh nor the UK Governments able to deliver a policy in this area. It is absolutely and profoundly wrong because—[Interruption.] I will give way in a moment. And the people who suffer—the people who suffer—are the people who are languishing in a system that is unable to meet their needs or the needs of the wider society for justice.

I agree with the Member in terms of higher issues around governance or jurisdiction, but surely much of this report is about the operation of the justice system on the ground when it's been starved of money. And many, many of these issues are as prevalent in regions across England, which have not had the benefit of this excellent report.

It is certainly partly that—I don't disagree with you that the policies that have been pursued by the UK Government for the last decade or so have been absolutely destructive and have caused a level of chaos that we haven't seen in recent history.

But let me say this: we, all too often, focus in on incarceration, the process of incarceration—of sending somebody into a secure estate, to send them to prison, in order to serve a sentence or whatever. That is actually a relatively small part of what a criminal justice system should be doing, and the reason for the failure of the current system is that all the services that should support and sustain somebody, not in the system, but through the system and out of the system, are already devolved. And it is a standing indictment, to use your word, of a system, which has been delivered over the centuries, that has not delivered a single facility for women, or, up until two or three years ago, a single serious facility outside of the M4 corridor. So, we have had a criminal justice system that has not been run for the benefit of the people of Wales, has not been run to meet the needs of the people of Wales, but has been run out of Whitehall and Westminster to meet their needs at their convenience. And the people who pay the price tend not to be people who are sitting in places like this, but they're the people we represent. And I believe, if we're serious about doing this, we need to take this step and to do so with a level of urgency. 

I look at how we administer not simply the laws we pass here, but also the way in which we enforce those. Mark Isherwood makes an interesting point, but absolutely wrong. We're not, here, talking about the detection of crime, or, as you put it, the devolution of criminal activity. I think we don't need to do that. What we are looking at here is how the police are able to engage with the devolved services, and speaking to police commissioners—. I spoke to all of the police commissioners as a Minister here, and there have been changes to chief constables now, but, for most of my time in office, both the commissioners and the chief constables, and most senior officers, strongly supported the devolution of the service, because they recognised that they needed to work more closely with the devolved services and they needed to be far more closely linked with the devolved services than they were and they are at present. It is not credible to argue otherwise. And I think the work that's been done by the commission has ensured that we have both the principle and the practice of a policy.

In principle—creating a more stable settlement—I'm very, very encouraged to hear within the Labour Party that the leadership candidates are all looking, I think, now towards a federal solution, or a confederal solution, in the United Kingdom; I think that's an important step forward. The devolution of the criminal justice system has to be a fundamental part of that. A federal system can't exist without that. And what we need to be able to do, as the former First Minister put it himself, is to create the circumstances for that to happen, because—and I'll finish on this point, Presiding Officer—at the moment, we are failing people who are in prison because of their mental health, or because of substance abuse. We're not providing them with the education they require. What we're doing is locking the door and forgetting about them. That might be the approach the Brexit Party and the Conservatives wish to take, but I do not believe that that is the approach that this Parliament can or should take. 

I call on the Counsel General to reply to the debate. Jeremy Miles. 

Diolch, Llywydd. In closing this debate, can I echo the First Minister's thanks to Lord Thomas and the commissioners for a substantial piece of work, which demonstrates robustness, expertise and independence, which most Members in their contributions have acknowledged? And I regret to say that I'm not able to say that all Members did so.

As Members of the Senedd, it's our responsibility to represent the interests of Wales and its people, and we are all working in our own ways to deliver that responsibility. And, generally speaking, I think everyone here, in our own way, wants to see a more just Wales. 

Many Members have made reference during the debate to comments made by UK Government Ministers, who seemed to dismiss the devolution of justice. But I don't think that the door is entirely closed on that, and, in looking at some of those comments, I do think there is an opportunity to study the commission's findings in more detail than has been the case so far, and I look forward to having further conversations on this topic with them. 

Justice, as the commission has said, should be at the heart of Government. And the commission's conclusions are unequivocal. Justice should be determined and delivered in Wales, to align with Wales's distinct and developing social, health and education policies. It currently is not, because justice, generally, is reserved. I agree with the commission that the current devolution settlement is confusing and complex and does not serve the needs of the people of Wales.

Will the Counsel General take a brief intervention?

Yes, indeed.

I'm very grateful to you. Would you agree with me that one area where this conflict is increasingly obvious is with regard to the family courts? Welsh public policy is increasingly taking a child rights based approach, and the family courts are taking a slightly different one. And would you agree with me that devolving justice would enable us to tie those knots together and to enable children and families to get better access and more timely access and, hopefully, a less confrontational process?

I would indeed agree with that proposition. We support strongly the devolution of family justice, because it enables better alignment with our priorities here as a Government, including early intervention and ensuring that the voice of the child is better heard in some of those proceedings as well.

That is one of a range of areas where the commission's work speaks to the need to integrate justice with those policy areas that are already devolved to Wales—some of them Mick Antoniw pointed out in his contribution—housing, health and education, amongst others. And it's that obstacle to integration that I think explains the dilemma with which Mark Isherwood was wrestling in his contribution, I think, which is why the justice system which is reserved isn't performing better for the people of Wales. In those areas, there is already divergence in the law that applies to England and the law that applies to Wales, and that will only gather momentum. And the conclusion that justice should be devolved speaks also to the better use of funding that can be then allocated holistically to secure better outcomes for the people that Leanne Wood and John Griffiths spoke so passionately and powerfully about, who are amongst the most vulnerable in our society. So, improving outcomes for the people of Wales must be at the heart of what we are trying to achieve.

Then, finally, there is the work that we can do now in Wales. And, for my part, I've met recently with the heads of law schools in Wales to discuss legal education and the establishment and the role of the proposed new law council for Wales. I'm pursuing the cause of the Welsh language in the system of professional legal qualifications, where, in contrast, to Mark Reckless, this Government expects parity of treatment for those seeking to qualify in Welsh. I'm meeting with law firms and with the Law Society—

Will the Minister give way?

Yes.

Does he think it's reasonable for someone who has only demonstrated proficiency through examination in Welsh to be able to practice across England, in English?

I think it's perfectly reasonable to expect that, just as the current system entitles people who have qualified in English to practice in Wales, including in Welsh, with Welsh clients.

I'm meeting further with Welsh law firms and the Law Society in the coming weeks to discuss how we can build further the capacity of the legal sector in Wales, and am already in discussions with the bar in Wales about what we can do together to further strengthen the important role it can play in enriching the legal ecology of Wales.

In drawing to a conclusion, Llywydd, it's clear that the commission has delivered a damning indictment on the state of the justice system in Wales. But it has also provided us with a bold vision and a route-map for how we can deliver improved outcomes for the people of Wales, and that must be our overriding objective in creating a fair and more just Wales.

The proposal is to agree amendment 1. Does any Member object? [Objection.] Therefore I will defer voting until voting time.

Voting deferred until voting time.