Resisting the carceral temptations of devolution
Large crowd of people with Welsh flags protesting for devolution.
By Emma Gant, Sam Hanks, Holly Mogford and John Moore
This article is a response to political and academic discourse that has emerged in support of a devolved criminal justice system in Cymru (Wales). It challenges, from an abolitionist perspective, arguments that present devolution as the solution to what is often presented as a criminal justice system that is both failing and at breaking point.
There are clearly major problems within criminal justice in Cymru. Indeed, it is often noted that Cymru has the highest rate of imprisonment in Western Europe. Despite official crime rates being significantly lower in Cymru than in England, people in Cymru are more likely to be imprisoned than their neighbours across the border. Entrenched and systemic racial bias can be found both in the extensive history of violence and repression metered out to racialised communities by Police in Cymru, as well as their overrepresentation within the Cymreig criminal justice system. Indeed, in 2022, there were 53 black people, compared to 14 white people from Wales in prison for every 10,000 of the population. Between 2010 and 2022, black defendants in Wales on average received custodial sentences that were 8.5 months longer than white defendants.
Like all prisons, those in Cymru are notoriously harmful and violent institutions. HMP Parc prison in Bridgend has already seen 13 prisoner deaths in 2024, prompting the Cymreig Government’s Social Justice minister, Jane Hutt to reassure the Senedd last month that the prison had made ‘considerable progress’ and was ‘now, much more stable’. Yet, any effort to cast an illusion of enhanced prisoner safety and wellbeing in the institution were destroyed just two days later when it emerged 4 of the prison’s guards had been arrested for assault in public office.
Whilst we support independence, we argue that current calls for the devolution of criminal justice in Cymru are overwhelmingly driven by a classic reformist agenda. Much of the existing analysis has been limited to a focus on constitutional and logistical tensions that emerge as the result of a ‘jagged edge’ across devolved and reserved powers and responsibilities between Westminster and Cardiff. In conjunction with this - and despite the extensive and repeated evidence of violence, racism and misogyny across Welsh Police Forces and criminal justice institutions - there appears broad consensus amongst many academics and practitioners that Cymru has more benevolent and progressive criminal justice instincts than its English counterparts. It is often purported therefore that securing a newly devolved criminal justice settlement would allow a progressive and ‘dragonised’ approach to be implemented, marking a departure from the current ‘broken’ system and offering the opportunity for a more compassionate and humane system of criminal justice in Cymru.
As abolitionists however, we argue that the criminal justice system should be recognised as a social problem in and of itself. The ‘problems’ are inherent to the system, and therefore cannot be alleviated without first dismantling and rejecting its founding principles, logics and institutions. Any newly devolved framework of justice built on the ideological foundations of the current criminal justice system, dragonised or not, would not represent a meaningful departure from the old. We therefore aim to contribute to ongoing debates by suggesting devolution, or independence, could allow Cymru to develop and implement an all-together alternative model and system for understanding and resolving social difference and conflict, rather than simply a ‘better’ or more ‘efficient’ iteration of the current criminal justice system.
Cymru is not England
Calls for the devolution of justice to Cymru are rooted in its annexation to England. Prior to the Norman conquest the Cymry (Welsh) had, according to the historian Martin Johnes, a ‘sense and awareness of a common Welsh history, language and law’. At the end of the thirteenth century, Cymreig (Welsh) criminal law, based on restorative mechanisms, was replaced by English criminal law. The Laws in Wales Act 1535 made English the only language used in Cymreig courts and barred monoglot Cymraeg speakers from all public offices. The Act was clear in its intentions, it declared that its aim was to prevent; ‘the people … using a speech nothing like the natural mother tongue (English) within this Realm … and to extinguish the sinister traditions and customs differing from the laws of this Realm.’ In 1542 London’s parliament passed a further Act which made Cymru’s status clear; it was to be ‘for ever from henceforth incorporated, united and annexed to and with this …realm of England’. Following a yes vote in the 1997 referendum the 1998 Government of Wales Act established the National Assembly for Wales and subsequent decades saw the devolution of powers in areas including agriculture, education, housing and transport. Westminster, however, retained its powers over Cymreig law making and criminal justice policy, insisting Cymru should remain an indiscreet entity within a broader ‘England and Wales’ criminal justice framework.
Devolution of justice has formed ‘an important part’ of the current Cymreig administrations’ programme for government, having been endorsed by the 2019 independent Commission on Justice in Wales. Indeed, the Thomas Commission concluded present arrangements are ‘unduly complex’ and that the Senedd should hold legislative responsibility for criminal justice . Proponents of devolution further point to Cymru’s consistently poor criminal justice outcomes, such as those outlined above.
The temptations of devolution
Considering previous iterations of devolution in Cymru, there are no surprises in the recent proposals for the devolution of justice– set out in the ‘Delivering Justice for Wales: 2024 Progress Report’. Despite seeming attempts to distance from a ‘for Wales see England’ line, it appears that fundamentally Westminster’s vision of ‘justice’ continues to take hold. With government spending cuts supposedly placing the justice system “as close as it has ever been to breaking point”, devolution, in its entirety, is the aspiration of the Cymreig government. Despite this aspiration, a phased approach is thought realistic, with the justice subgroup of the Independent Commission on the Constitutional Future of Wales identifying policing, youth justice and probation as the “most straightforward services to begin the process”.
‘Diversion’, ‘integration’ and ‘partnership’- are the buzzwords that Cymreig devolution aspires to. These are classic reformist reforms. Diversion from the Criminal Justice System is claimed to characterise the existing “proactive approach” to youth justice in Cymru undertaken in part by Youth Offending Teams (YOTs) and has been informed by the ‘All Wales Youth Offending Strategy’. Whilst the "joined-up" approach, viewed as critical to diversion, is claimed to be ‘long established’ in Cymru, it is thought to be hindered by the incompatibility of policy set by the Ministry of Justice with Cymreig Government policy. The complete devolution of youth justice is therefore seen as the solution. Although claiming to address local needs, these policies often perpetuate existing punitive frameworks. While proponents argue for a shift towards non-custodial measures and welfare-based responses, we would highlight that such frameworks can lead to net widening, drawing more youth into formal processes that reinforce stigmatisation. The emphasis on diversion often masks punitive undercurrents, including Intensive Supervision and Surveillance Programmes (ISSP) which are intended as alternatives to custody, yet impose restrictive conditions, including electronic monitoring, that mirror punitive systems that subject participants to heightened police contact. Reflecting this coercive approach, staff operate with an ‘air of authority’, that sustains surveillance and punishment under the guise of reform. Similarly, the proposals set for probation, supported by the Probation Development Group, advocate for increased diversion and integration with existing devolved services (health and social services, education, learning and skills and housing). However, they still operate within a punitive carceral framework. The call for enhanced police collaboration to support these diversionary efforts risks further entrenching systemic biases and increasing criminalisation
These programmes then reinforce the carceral logic by shifting punishment into the community while maintaining the cycles of criminalisation and control. Despite claims of reform and support, the state retains the power to impose imprisonment when individuals fail to comply with these systems. Under Operation Jaeger in Swansea, for example, sex workers who refused to engage with support services faced action and in Newport 35 were arrested for soliciting and 28 charged under the public spaces protection order (PSPO). While the police emphasised that 'every effort will continue to be made to protect, support, and deliver,' their actions highlight the oppressive nature of these programmes, where non-cooperation leads to further criminalisation and imprisonment.
The proposal for devolution regarding policing rehearses critiques of how the current constitutional structure limits the possibilities of partnerships. Devolution is thought to enable ‘a more focused, integrated approach’ – with ‘operational independence’ being stressed as key to ‘prevent crime and keep communities safe’. In particular a proposal for an all-Cymru police force is gaining support from politicians, the police and academics. Proponents argue that such a force would better address the diverse needs of the Cymry, particularly in rural areas. However, this perspective fails to interrogate the fundamental issues inherent in policing as a state apparatus. Cymreig police forces have been responsible for a series of miscarriages of justice. South Wales Police (SWP), the largest police force in Cymru and likely to be the dominant force in determining the culture of an all-Cymru police force, has been described as institutionally racist by its own Chief Constable. That would have come to no surprise to Cymru’s non-white community who have long experienced their racism. Like other Cymreig police forces, SWP’s policing of working class communities has been particularly aggressive. The death of two children, Kyrees Sullivan and Harvey Evans whilst being pursued by SWP officers in 2023 and the resultant angry protests – sparked in a large part by the misinformation published by both SWP and Alun Michael, the local elected Labour Party Police and Crime Commissioner – showed that rather than bringing order to local working class communities the police can bring violence, death and disorder. The expansion of police forces does not lead to efficiency but rather reinforces the coercive mechanisms that disproportionately affect vulnerable populations. Instead of advocating for reconfiguration within an oppressive framework, we must envision a radical transformation of public safety that diverts resources away from policing.
These reformist proposals do not present a guide for profoundly transformative justice but, instead recycle previous framings of ‘justice’ which orbits around carceral institutions. Despite welcomed appreciation of the significance of social justice, health, housing and education, and the ‘Anti Racist Wales Action Plan’ 2022 recognising that “racism is built into our policies, formal and informal rules and regulations and generally the ways in which we work” - radical rethinking around institutions, such as police, probation and prison are absent in official proposals for the devolution of justice in Cymru. These initiatives often function within existing punitive frameworks and continue to support carceral solutions, rather than radically transforming the nature of justice. This approach is inadequate, as it overlooks the systemic factors and fails to challenge the carceral logic embedded in current practices.
Independence as more of the same
An examination of other nations' experiences of taking over their justice systems – either through devolution or independence – show a history of rebranding rather than fundamental change. The focus has tended to be on the transfer of the control with little or no change in the fundamentals of the system. Laws have been retained, the specific individuals the justice system focuses on have remained unchanged and the outcomes they experience remained the same. On gaining independence from Britain its former colonies police and prisons nominally served new masters, but they, and much of the violence and abuse of the colonial period, remained largely unchanged. The websites of prison departments of Kenya and Singapore, for example, show that these institutions do not see independence as a significant break in their history. Indeed if you look at the Nigerian Correction Service’s website it is impossible to identify when Nigeria became independent.
The history of the police forces shows a similar continuity, indeed, despite independence, they have all been described as remaining British police forces. This has real consequences, in the brutal police suppression of protest in Kenya, a country whose police are unreformable because of their colonial history. Another police force with colonial roots is Nigeria, where the 2020 #EndSARS campaign protests highlighted the Nigerian police’s Special Anti-Robbery Squad’s extortion, sexual violence and torture. These are not isolated examples of the reality of post-independence justice; police violence and abuse is widespread with many similar examples. Closer to Cymru, we can see how little has changed in the justice systems of the independent Republic of Ireland or the devolved justice systems of Northern Ireland and Scotland. Indeed Scotland is the closest example of a structure called for by those seeking devolution of justice to Cymru. Here the major structural change of the SNP government under devolved powers was the 2013 merger of Scotland’s eight regional police forces into one single force – Police Scotland. A move designed to strengthen police powers. The Scottish prison population, under devolution, has continued to grow consistently, remaining slightly above the English rate of imprisonment, but below the rate in Cymru.
Carchar Cymreig, Heddlu Cymreig, and Prawf Cymreig?
The debate around devolution of justice in Cymru has reflected an emphasis on rebadging – Cymreig prisons, Cymreig police and Cymreig Probation without any fundamental critique of the current criminal justice system. As such, devolved justice will continue to target the poor in general and the racialised poor in particular. It will continue to be the British justice system, reinforcing the same structural inequalities. Devolution or independence, whilst welcome, will not, by themselves, change anything. What is needed is a new abolitionist approach to justice which has a vision for a society that has no need for police and prisons, which has strong communities able to create emancipatory solutions. If Cymru is to gain independence, it will only truly be independent if it rejects the paradigm of criminal justice and instead commits to developing abolition democracy.