Part of the debate – in the Senedd at 6:11 pm on 4 February 2020.
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.