This final part of the first mini-series on a Welsh legal system looks at law-making and the possible relationship between the Welsh Government, Senedd and the judiciary after independence. Contain your excitement.
The next mini-series – focused on policing – will be published sometime in late September/early October.
One key issue to consider with the devolution of justice – let alone independence – is the creation of the civil service department to run the justice system.
The only difference between how a justice department would operate under devolution and under independence would be the range of responsibilities – for example, immigration and drug enforcement powers would only realistically come via independence.
The Thomas Commission quotes Welsh Government estimates that a Welsh Justice Department would cost around £14million-a-year to run and would create 200 new civil service posts1.
However, the Thomas Commission also said the “big department” approach was outdated. The suggested Wales considers an advisory group made up of legal experts and academics (possible related to their separate proposal for a Law Council of Wales) working with a smaller number of civil servants – which could be cheaper (I’ll come back to this in more detail in Part X).
Nevertheless, there are a few options:
- A single Justice & Home Affairs ministry – This is the working assumption and also the option favoured by Plaid Cymru in their Independence Commission report2. There would be a single Justice Department headed by a Cabinet-level Justice Minister and they would presumably have policy responsibility for the entirety of the criminal justice system and (post-independence) possibly some other home affairs responsibilities such as immigration and national security. They would also take the lead in cross-border cooperation on justice matters and issues like extradition.
- Separate Home Affairs and Justice ministries – This is what the UK Government adopted in 2007 when the Ministry of Justice was split from the Home Office. A Home Affairs Department would deal with (at a national level; some of this would be locally controlled) policing, national security, the fire service, civil contingencies/emergency planning and immigration (possibly defence as well); the Justice Department would deal with court administration, prisons, probation services, youth justice and creating new criminal and civil laws.
- Responsibilities shared between existing (and new) departments – Since devolution in Wales, whoever’s been in charge of the Communities/Local Government portfolio has traditionally dealt with the fire services, emergency planning and community safety. With the devolution of the necessary powers and/or independence this could expand to include policing. Matters relating to criminal justice and the court system could fall under the remit of the Attorney General, while whoever is in charge of social justice could take on responsibility for rehabilitation/prisons and other home affairs matters like immigration.
1: Commission on Justice in Wales, (October 2019). Justice in Wales for the People of Wales, p480-481. Available at: https://gov.wales/sites/default/files/publications/2019-10/Justice%20Commission%20ENG%20DIGITAL_2.pdf
2: Plaid Cymru Independence Commission, (September 2020). Towards an Independent Wales, p66.
