Criminal justice and devolution

The UK has three separate criminal justice systems:

• England and Wales
• Scotland
• Northern Ireland.

The criminal justice system and legal jurisdiction of England and Wales are reserved – non-devolved – matters, and so are under the control of the UK parliament and government at Westminster. The criminal justice systems of Scotland and Northern Ireland are devolved to the Scottish parliament and Northern Ireland assembly respectively.

However, the UK parliament is sovereign, meaning it retains the ability to legislate even in devolved areas of criminal justice – although under the Sewel Convention it does “not normally” do so without the consent of the relevant devolved legislature.

Why are there separate justice systems within the UK?

With the formation of the UK in 1707, Scotland kept its own distinct legal and criminal justice systems. Its court system, legal professional bodies, police forces and prosecution service, as well as prison and criminal justice social work services, were administered by Scottish institutions for almost three hundred years prior to devolution in 1999. When the new Scottish parliament was established, responsibility for the Scottish justice system was, with few exceptions, devolved to it.

Wales has been part of a unified legal jurisdiction with England since the Laws in Wales Acts 1535 and 1542, during the reign of King Henry VIII, and so does not have its own criminal justice system. The establishment of the National Assembly of Wales (now the Welsh Parliament/Senedd Cymru), also in 1999, has produced a growing body of distinct Welsh law within the joint England and Wales legal jurisdiction, especially since the powers of the assembly were expanded in 2007. This has led to calls for the devolution of justice powers and the creation of a separate Welsh legal jurisdiction.

The partition of Ireland under the Government of Ireland Act 1920 created the separate legal system of Northern Ireland, followed by the establishment of the devolved Parliament of Northern Ireland at Stormont, in Belfast. The Stormont parliament was suspended from 1972, and Westminster exercised direct rule over Northern Ireland until the creation of the new Northern Ireland assembly in 1999, following the signing of the Good Friday/Belfast Agreement.

Policing and criminal justice powers were not initially transferred to the new assembly. Instead, the Good Friday Agreement noted that the UK government was “ready in principle” to devolve responsibility for these matters; and a mechanism for policing and justice to be devolved was provided for in the Northern Ireland Act 1998.

When and how were policing and criminal justice powers devolved to Northern Ireland?

Criminal justice and policing were not transferred to the Northern Ireland assembly until 2010. The devolution of these functions required cross-community consent – meaning the support of a majority of designated unionist and nationalist members, as well as a majority in the assembly as a whole, or majority of at least 60% of members present and voting, including at least 40% each of unionists and nationalists.

The issue of police reform was a major hurdle to reaching cross-community agreement. The Royal Ulster Constabulary, in particular, was regarded by many nationalists as representing the unionist community, and its replacement in 2001 by the Police Service of Northern Ireland was part of a long process to establishing cross-community trust in the justice system. This helped pave the way for criminal justice powers to be transferred to Belfast.

To ensure that the devolved justice system commands the confidence of both communities, the justice minister is the only minister in the Northern Ireland executive who is appointed by means of a cross-community vote in the assembly.

What criminal justice powers do the devolved legislatures have?

The devolution settlements differ, but certain powers relating to criminal justice remain reserved to Westminster for all devolved legislatures. These include those relating to counter-terrorism, firearms, extradition, misuse of drugs and legal safeguards for human rights.

Scotland has the most extensive form of criminal justice devolution. Almost all aspects of the justice system were devolved in 1999, save for a few specific exclusions such as those mentioned above. Further legislation has led to the devolution of the drink-drive alcohol limit in 2012 and railway policing in 2016.

While also extensive, Northern Ireland’s devolution settlement contains additional justice exceptions. For instance, the specific powers of separating prisoners on grounds of security, safety or good order, and the security of explosives (except fireworks) are reserved to Westminster, due to Northern Ireland’s history of civil unrest.

Wales has significantly fewer powers in general than Northern Ireland and Scotland, and has few powers in the area of justice. Responsibility for the police, courts, prisons and probation in Wales rests with the UK parliament and government. A unique aspect of the devolution settlement with Wales is the general reservation to Westminster of the single legal jurisdiction of England and Wales. This means that the Senedd is able to make laws in devolved areas, but that these are part of the general law of both England and Wales.

However, the Senedd does have a number of powers that heavily intersect with the operation of the justice system. These include powers over mental health and substance misuse services (both in the community and in prisons), education for prisoners, skills training relating to the rehabilitation of offenders, and the provision of housing to offenders being resettled in the community.

What are the criminal court systems in each nation?

Scotland has its own judiciary and court system, which has a different structure to the equivalent system in England and Wales and Northern Ireland. It is administered by the Scottish Courts and Tribunals Service. Criminal prosecutions are heard by the justice of the peace courts, sheriff courts and the High Court of Justiciary.

The UK Supreme Court sits as the highest court of appeal for all civil cases in Scotland, but its right of review is limited in relation to Scottish criminal cases. Most final appeals for criminal cases are heard by the High Court of the Justiciary, sitting as an appeal court – the Supreme Court cannot review the decisions of the High Court on matters solely concerning Scottish criminal law.

The Supreme Court only hears Scottish criminal cases in which a devolution or compatibility issue arises. Devolution issues arise in relation to questions over whether a provision of an act of the Scottish parliament or decision of the Scottish government relate to a reserved matter, such as a 2010 challenge over the sentencing for a road traffic offence ⁷ Martin and Miller v HM Advocate [2010] UKSC10  (an area where a lot of the policy is devolved but the sentencing of offences is not). Compatibility issues arise when a public authority or act of the Scottish parliament is challenged as being incompatible with the European Convention on Human Rights or with EU law.

The courts of Wales have been part of a fully integrated system with the courts of England since 1830, and there has been no devolution or separation of powers to change this. The judiciary of those courts is headed by the lord chief justice of England and Wales, and the court system is administered by Her Majesty’s Courts and Tribunals Service (HMCTS).

In England and Wales, there are two types of criminal court: magistrates’ courts and the Crown Court (a single entity that sits in 77 locations across England and Wales). Cases begin in a magistrates’ courts and are referred to the Crown Court only if they concern a serious offence, require sentencing or if the first-instance decision is appealed. Any further appeals are heard first by the Court of Appeal, and then by the Supreme Court as the final court of appeal.

Northern Ireland has its own independent judiciary and court system, with the latter administered by Northern Ireland Courts and Tribunals Service. The court structure for criminal prosecutions is broadly the same as in England and Wales, with less serious cases heard by magistrates’ courts and more serious ones by the Crown Court. Unlike in Scotland, the UK Supreme Court is not limited to reviewing specific categories of issues in criminal cases in Northern Ireland, meaning it is the highest court of appeal for both civil and criminal cases.

What proposals are there for further devolution of justice powers?

Debate over the devolution of justice powers to Wales has been ongoing for several years. A review of the Welsh justice system was published in October 2019 by the Commission on Justice in Wales, chaired by the former lord chief justice of England and Wales Lord Thomas of Cwmgiedd. The report’s key recommendations were that control of policing and justice in Wales should be devolved to the Senedd, and that a new Welsh jurisdiction should be created.

The commission argued that the division of powers between Westminster and Cardiff made it more difficult to join up the justice system with other public services such as health and education, and that this led to a lack of accountability. Lord Thomas stated that “the way that responsibilities are split between Westminster and Cardiff has created pointless complexity, confusion and incoherence in justice and policing in Wales”.

Chris Philip, UK parliamentary under-secretary of state for justice, responded in a Westminster Hall debate that the government had “no intention to produce a full and formal response” as they had not commissioned the report, but committed to discussing it “in detail” with the Welsh government. He added that devolution of justice powers would exacerbate the “jagged edge” of how devolved and non-devolved powers intersect, and estimated that a separate Welsh jurisdiction could cost up to £100m a year.

The Welsh government is implementing some of the reforms that fall within their current powers, such as creating a Law Council of Wales and giving oversight of justice matters to a Welsh select committee, as well as seeking negotiations with UK ministers on the main recommendations of the commission. 

The Scottish government has called for further justice powers to be devolved to Holyrood. In particular, it argues that drug policy should be devolved, to enable the decriminalisation of possession and consumption of controlled drugs in Scotland.

There is no debate at present on the potential for further devolution of justice powers to Northern Ireland.

How did the Coronavirus Act affect the UK’s devolved criminal justice systems?

The Coronavirus Act 2020, which passed through both Houses of Parliament on 23 and 24 March, contains a number of provisions relating to the operation of the criminal justice systems in the devolved nations.

As a result, many of the justice provisions in the Act were subject to the Sewel Convention. This applied, for instance, to changes that the Act made to the Investigatory Powers Act 2016, and to the inquest process where the suspected cause of death is Covid-19. Consent was given by all three devolved legislatures on 24 March.

The Coronavirus Act also includes provisions aimed at supporting the continued operation of criminal courts and expanding the use of video links in trials. These provisions were specifically extended to courts in Northern Ireland, but not to courts in Scotland.

The Scottish government instead brought forward its own legislation, the Coronavirus (Scotland) Act 2020, followed by the Coronavirus (Scotland) (No.2) Act 2020. ⁸ Coronavirus Scotland Act, www.parliament.scot/parliamentarybusiness/Bills/114929.aspx  The Scottish government initially proposed to enable trials to go ahead without juries, changing the rules concerning witness statements and waive certain time limits. Following considerable criticism from the legal and political community, these clauses were removed from the first Act and the Scottish government pledged to reconsider before bringing forward provisions in a new bill. The second Coronavirus (Scotland) Act was more limited, disapplying certain time limits for adjourning criminal cases and widening the use of virtual custody hearings.

While all jury trials were suspended across the UK during the height of the pandemic, they began to be held again in England and Wales from 18 May with social distancing measures in place.