Email this article Welsh Devolution and Civil Society: Shaping the Future?
Kate Williams
Senior Lecturer in Criminology, Aberystwyth University
LLM Cantab, LLB Wales
khw@aber.ac.uk
Martina Y Feilzer
Senior Lecturer in Criminology and Criminal Justice, Bangor
University
MSc (Edinburgh) DPhil (Oxford)
m.feilzer@bangor.ac.uk
© 2013 Kate Williams and Martina Feilzer
First published in the Web Journal of Current Legal Issues
Citation: Williams K and Feilzer M, 'Welsh Devolution and Civil
Society: Shaping the Future?', (2013) 19(2) Web JCLI
Abstract
This paper outlines how devolution has evolved in Wales since 1998, noting the effects of both macro-level political ideology and alterations of governance. The paper reflects on the particular position of non-devolved criminal justice services in the Welsh structure of governance and delivery of social justice and the underlying processes of service delivery in Wales. Through the theories of relational and phase space it assesses the fragility of the new multi-level governance and civil society and questions their ability to build permanent and reliable devolved entities and their effectiveness in meeting the challenges caused by Westminster policy. It also analyses how changes in devolution processes affect the delivery of criminal justice services in Wales and points to the effects of recent changes in governance proposed by the UK Government – the new localism – which tend to strain, possibly even undermine the devolution process in subtle yet significant ways. Thus, the criminal justice arena is regarded as a good measure for the health of devolution in Wales.
Contents
2. Process of Power-Building in Wales (Devolution)
3. Criminal Justice and Devolution
4. Civil Society: Strengthening and Extending Devolution
5. The Building of Civil Society in Wales 1999-2009: Seen through Criminal Justice
6. Civil Society and Criminal Justice 2010-2013 – Undermining Devolution?
1. Introduction
Old liberalism and constitutionalism posited that state laws and constitutions were rational and neutral on cultural and societal matters allowing them to build theories based on liberal theoretical claims of true and universal justice and norms(1) which supported strong and seemingly unified nation-states where state and nation were synonymous. These supposedly unified and 'neutral' constitutional, theoretical and legal orders have been exposed as reflecting the interests and needs of a dominant group(s) and of being tied to old territorial theoretical paradigms.(2) Their neutrality and 'truth' have been questioned and nation-states have been stretched and fractured by the forging of new sub-state national identities and loyalties which often break the earlier unquestioned bonds between citizen and state layering in new bonds to nation, to state and possibly to international orders; plurinational states.(3) In the UK, the old order was depicted through the citizen's loyalty to crown and state; the new devolved constitutional order, at least in the Celtic areas, recognises individual loyalty first to nation (Ireland, Scotland, Wales) then to state, Britain (and possibly the crown), and finally to Europe especially through the European Union (EU) but also through the European Convention on Human Rights (ECHR). These new constitutional configurations question old static and stable liberalism, are altered by changes in the politics of constitutional legal orders, they are fluid and better reflected in theories that recognise the more textured concepts of relational space(4) and phase space, with its many possible futures.(5)
Kymlicka,(6) Keating,(7) Norman,(8) and others posit a model in which devolution permits local minority cultural identities, particularly those which feel they have been crushed in a broader nation, to flourish. These new models recognise that modern states are complex containing many groups, peoples and identities whose aspirations need to be taken seriously and who have different concepts of justice and governance that need addressing. Many now accept that it is only through consideration of all interests that freedom, equality, democracy and justice can be achieved (9)and from this new nations emerge, sometimes by splitting a nation-state into a federation or a devolved system of governance, sometimes by the forging of new states. Each nation emerges for differing reasons, with differing powers and to differing effect.(10) Each faces particular, and often complex, cultural and social justice issues. However, these new orders should not flourish through subjugation of other ideas, groups or individuals, through new but equally undesirable forms of national certainty and assimilation.(11) In Wales, where much of the impetus for devolution was linguistic and cultural and where hard-line Welsh language activists were prominent in the devolution discourse there has been a greater need to be wary of these dangers as being real possibilities.
In constitutional terms the forging of new nations can take a number of guises. Clearly constitutions (and constitutional understandings) can be re-created or re-aligned to recognise nations within a state (as happened in the UK in 1998). Constitutional changes might also arise out of processes of formal constitutional change. However, nations can build constitutional powers incrementally either through constitutional interpretation by the courts or by nurturing its' civil society. These might either extend and stretch or compress and obstruct (re-centralise) the formal constitutional provisions. Such developments are more fluid and may be best conceptualised under relational space theory where the underpinning of new constitutional powers are formed through multi-level governance and territorial interconnections of activity between and within civil society; relying on institutions, networks and communities' social capital to maintain spatially fixed political and policy making organs. Some of these might be encouraged and/or nurtured by state or sub-state governments and while the exact means by which this occurs is unclear they appear to have an effect on formation and evolution of devolved governments.(12) Indeed for relational space and phase space these networks of civil society highlight the ways in which the governance of space and thus its place is structured, framed, constrained or connected and how these affect the existence and emergence of special identities. Basically they, phase space in particular, claim that the structural realities and futures are formed by what both what is structurally real and its contextual realities which are bounded by networks and identities. It contains and considers possible futures of space and its governance through consideration of present context. Here, therefore the way in which networks of civil society consider and treat space is important and may help to shape its future, if structures such as a devolved power become sufficiently 'real' this may constrain or expand their future.
This article will look at the process of devolution in relation to Wales, analysing the progression of devolution over time and under differing Westminster governments and assess any progress and regression in this process. Throughout it embraces the idea that devolution and changes in power relations are complex, not purely legal or political issues nor are they guaranteed or uni-directional. They are on-going processes affected by law, economics, politics, society and the social and political networks which weave in, through and across a territory and which can support or subvert constitutional, political, social and economic change. It explores some of what has happened since 1998 and recognises different possible futures which might grow depending on the strength of various networks of power and relationships. Through the prism of criminal justice, a non-devolved area, it will consider the extent to which Wales has successfully built an inclusive area of regional governance, protective of minority groups and rooted in justice. Finally, in relation to the impact of new Westminster policies, it will briefly consider: how processes of power and governance have changed; whether and, if so how, links with various groups and networks in criminal justice impact on this and on the delivery of criminal justice, the process of political change and the flow of power; what futures may be on the horizon.
2. Process of Power-Building in Wales (Devolution)
The ascendancy of the New Labour Party was based around a 'third way' alternative.(13) The National Assembly for Wales was the product of this 1990s New Labour and third way desire and pledge to reform the UK's Constitution. Blair presented devolution as "sensible modernisation of the partnership in the UK".(14) This was a re-birth of the devolution agenda from the 1960s and 70s.(15) Wales was not included in Blair's original devolution plans in 1996 but Ron Davis persuaded him that devolution needed to be offered in both Wales and Scotland.(16) Popular support for devolution and greater local control was reasonably strong in Scotland and Northern Ireland but in Wales was based more on language, culture and community differences.(17) In political terms the expectation in relation to Wales was also limited: to strengthen regionalism within Europe; to design a new type of unitary state; to increase close local democratic government; and to introduce new systems of inclusive governance. Welsh devolution was not intended to move policy and law making powers to Wales(18) rather it was to deliver more accessible and representative government; to increase openness, participation, innovation and inclusiveness in decision making and improve accountability.
From the early 1990s inclusiveness replaced equality as the political mantra of the Labour Party.(19) Equality suggests conflicts of interest in society necessitating changes (possibly fundamental). Inclusion merely needs to be facilitated through more diffuse decision making and power systems, democratisation of government and greater governance.(20) Some within the Welsh Labour Party embraced devolution as the means through which inclusive government might be delivered to Wales.(21) Therefore, inclusiveness and a local accountability was the foundation on which the devolution initiative for Wales was built.(22)
In the Welsh context inclusiveness takes on a broad meaning comprising accessibility, equality,(23) representativeness, legitimacy, fairness, openness, participation and opportunity, innovation in methods of government and accountability. The Assembly strives to keep open lines of dialogue between it and the people and organisations it governs. An example of that is the series of Economic Summits held all over Wales to elicit the collective economic need and collate ideas of how to ensure that Wales emerges from the recession with a vibrant economy; through direct support for some businesses to retrain staff and so retain their workforce.
Constitutionally speaking Scottish devolution since 1999 has been remarkably stable, even the Calman Commission(24) did not suggest huge changes to the settlement (to the powers of the Scottish Parliament) but the story in Wales has been very different, it has been constantly shifting(25) and can be seen as developing in three distinct phases:
Phase one - closer to local government than national parliament: (1998-2006)
The Government of Wales Act 1998 gave the National Assembly the executive power wielded by the Secretary of State for Wales prior to devolution. It established the National Assembly as a "body corporate" (see also the Government of Wales Act ss.52-61) with no real separation of powers or cabinet government. There was no strong political or legal change but producing the environment in which a broader polity in Wales could begin to build.
In 2004 the Richard Commission(26) (established by the WG in 2002) suggested that the Assembly should both have legal separation of powers and move towards full law making powers. This led to the 2005 White Paper Better Governance for Wales(27) and the Government of Wales Act 2006.
Phase two – legal separation of powers (2007-2011)
Legal separation of the executive and legislature (under the Government of Wales Act 2006) resulted in the Welsh Assembly Government (WAG) making and implementing policy and subordinate legislation, its decisions were kept in check by the Assembly holding the executive to account.
The 2006 Act allowed the Assembly to make laws in narrow and defined areas and permitted extra powers to be devolved if a Legislative Competence Order was approved by the Assembly and both Houses of Parliament. The Assembly could also request framework powers to be included in new Acts of Parliament. This was a cumbersome system and procedure, few laws were passed and few extra powers were devolved.(28)
On 3 March 2011 the Welsh voted in favour of the Assembly having law-making powers.
Phase three - 'conferred powers' law making (2011-to date)
On 5 May 2011 the Welsh Government (WG) was formed and the Assembly gained law making powers over devolved matters. Law making is on the 'conferred areas' or 'conferred powers' model. A conferred powers model was offered to, and rejected by, Scotland in 1978 because the division of responsibility is unclear and legislation is likely to be contested by Westminster as being ultra vires (exceeding the law making power conferred). In 1998 Scotland won reserved powers law-making (it can legislate unless Westminster specifically reserved powers) which ensures independent law-making with little likelihood of any legislation being challenged. Since 1999 over 200 Acts of the Scottish Parliament have been passed, none has been contested. The first piece of legislation passed by the Welsh Assembly was challenged by the UK Government. The Supreme Court unanimously affirmed the law-making power of the Assembly (Local Government Byelaws (Wales) Bill 2012 – Reference by the Attorney General for England and Wales).(29) The Secretary of State for Wales also asked the Attorney General to consider making a reference to the Supreme Court of the National Assembly for Wales (Official Languages) Bill.(30) Five out of the first 14 Bills have been considered for a challenge (Silk Commission, public meeting Aberystwyth 2013), if this continues more referrals to the Supreme Court seem likely. Such legal challenges will make Welsh legislation an expensive and slow process. The WG won the first challenge, this might give them confidence in using their law-making powers and deter Westminster from further challenges. However, more challenges may dampen this confidence and cause the WG to be cautious and refrain from full use of its powers so stifling Welsh law-making. This restrictive law-making capacity was probably not what the Welsh people understood when they voted in 2011; most believed Wales was getting law making powers on a par with those in Scotland.(31)
In this situation it seems likely that there will be a phase four. The WG wants the same law-making powers as the Scottish Parliament. In 2011 the Silk Commission started looking at Welsh devolution. Part I of its work considered financial accountability as well as 'empowerment and responsibility'; it suggested minor tax raising and borrowing powers for the WG.(32) Part II is considering the broader constitutional arrangement, the structure of the devolution settlement, as well as whether other specific areas/powers should be devolved, e.g. policing and criminal justice; media and broadcasting; energy, including regulation and renewable energy. Its findings are likely to underpin phase four of Welsh devolution.
The story so far suggests devolution is constantly moving forward and only one aspect questions this; s. 32 of the 2006 Government of Wales Act provides for the Secretary of State for Wales, a Minister of the Crown, or his/her appointed officials to attend (but not vote in) either plenary meetings of the Assembly or committee meetings, this power given to Westminster is more intrusive than those provided under the 1998 Act. This is a very minor blip in what has otherwise been a relentless move to increasing Welsh devolved powers and seems to suggest Ron Davies was right when he coined the idea of Welsh devolution as "... a process, not an event". From the preceding, purely legislative model, this would indeed appear to be a sensible conclusion. However, there is no written constitution forming a federation in the United Kingdom, still less one where the devolved governments are given any protection. In purely legal terms Westminster retains the power to reverse the process in Wales, Scotland and Northern Ireland. Westminster is still sovereign and, in theory, can pass any laws, even on devolved matters. Politically this might be virtually impossible without the consent of the people of those nations/regions and in practice when Westminster has legislated in an area which relates to, or affects, a devolved area the UK Parliament has consulted with the WG. However, s.32 of the 2006 Government of Wales Act and the challenges to Welsh legislation both illustrate that devolution is not an entrenched right for the Welsh, that powers can be altered and/or challenged by Westminster. Despite devolution and the power to enact laws the WG is not truly sovereign in its realm, even over devolved matters. Furthermore, as can be seen by studying the area of crime and criminal justice the inexorable advance of devolution might be questioned still further when looking at the practice of governance. Devolution's true fragility may lie in a lethal combination of an unsympathetic Westminster Government and the erosion of newly emerging civil powers (civil society).
3. Criminal Justice and Devolution
There are twenty broad policy areas which have been devolved and over which the Welsh Assembly can legislate. Crime, policing and criminal justice are not among them and responsibility for the reduction of crime and anti-social behaviour, the Police, the Crown Prosecution Service, Her Majesty's Court Service, the National Offender Management service (including prisons and probation) and much of the work of the Youth Justice Board all rest at Westminster and are now controlled by three Westminster Government departments: the Home Office; the Ministry of Justice; and the Attorney General's Office. This split in Westminster authority can lead to nuanced differences in focus of policy implementation but does not detract from the fact that all criminal justice agencies are expected to deliver central Westminster Government policy. However, most of the partnership agencies necessary to successful completion of their work (education, health, highways and transport, fire, housing, local government (including social services), social welfare, agriculture and fisheries, etc.) are controlled by the WG and take account of local needs to deliver safer communities. Over many issues the devolved and non-devolved services work in partnership. For example, resolution of substance misuse issues often involves housing, health and social services (all devolved) as well as inputs from diverse agencies (including non-devolved criminal justice agencies). In relation to youth justice all the mainstream child services such as education and training, health and social services are devolved and controlled by local authorities accountable to the WG (overseen by the independent office of Children's Commissioner for Wales) whereas the criminal justice services such as policing, the youth courts and the Youth Justice Board Cymru (YJB) remain answerable to Westminster.
In relation to policing, the four Welsh Police services are answerable to the Home Office in London. This has advantages for some areas of their role such as internet crime and terrorism and to respond to emergencies but, as noted in the All Wales Convention Report:
"... many aspects of police work touch on devolved areas which fall within the Welsh Assembly Government's responsibilities, particularly: crime reduction; youth crime and anti social behaviour; domestic violence; arrangements for mentally disordered offenders and their social supervisors; the development and implementation of strategies against substance misuse; and transport and roads policy."(33)
Funding reflects this complexity with 40% from the Home Office, 30% from the WG, and 30% from each local Authority. As a result, the police work to agendas set by both Westminster and Cardiff, as well as their local communities and they work well within the partnership aspects of WG. At the macro level however, there are shortcomings in the level of consultation between the Home Office and the WG meaning that the police are answerable to two different, sometimes conflicting, policy agendas. For example, the HO agenda is often inappropriate or problematic in the more rural context of Wales; also in substance misuse the Welsh agenda is more health and community based and includes alcohol as a core priority whereas the English strategy is more criminal justice and illegal substances focused.(34) The Welsh focus ensures:
"... that services delivered to offenders, local communities, courts and victims will have a distinct Welsh focus that reflects the Assembly Government's objectives and the founding principles of the National Assembly for Wales: the Welsh language, social justice, diversity, community regeneration, social inclusion and equality of access"(35)
Over a number of years the WG recognised that in order to deliver on their present policies they need to play more of a role in criminal justice issues. The Richard Commission(36) suggested that both Westminster facing and Cardiff facing agencies should work towards a more integrated delivery of services but suggested caution before fully devolving criminal justice services such as the police. Morgan(37) suggested greater official devolution of some administrative aspects of youth justice though not the purely legal areas. However, he believes Welsh youth justice policy is possible without devolution, for him devolution is almost irrelevant (see above). The Silk Commission is due to report in early 2014 and policing, probation and criminal justice are among the areas they are considering for greater devolved powers. Evidence to the committee seems to fall in favour of devolving these areas, particularly policing. The WG has argued both for reserve powers legislative competence and policing to be granted to it immediately.(38) The Westminster Government argues for no devolution of policing or any criminal justice powers (as being too costly though this case is not evidenced)(39) and even for the repatriation of some powers to Westminster. Many politicians in Wales are in favour of devolution of policing, three out of the four PCCs are in favour, and the Welsh public appear to support devolution of policing.(40) Many practitioners and local politicians support it because if policing and criminal justice were part of the Welsh remit these bodies could, more effectively and efficiently, meet the needs of local people
".... if it (the Assembly) was in charge of local police we could strengthen these partnerships and make a considerable difference to the residents of our areas."(41)
However, devolving policing can only happen if there are legal changes to the governance of policing. Therefore one needs to consider the health of devolution without such changes and the core of this article is that the activities of fragile devolved powers can be supported (and, to an extent, extended) by a strong and supportive civil society(42) or be undermined by its absence or anything which impedes such support. The rest of this article is to ascertain what role civil society in Wales is playing in the process of devolution.
4. Civil Society: Strengthening and Extending Devolution
Giddens(43) characterised devolution as a territorial reorganisation designed to breathe new life into the state, its constituent parts and to civil society. Whilst nation building can only occur through official devolution of powers and recognition of the new nation internationally as an emerging state and nationally within the constitution, such legal tools will only succeed in building a real and modern nation if civil society is strongly supportive of the new governance and central, old state, governance does not interfere. Clearly constitutions can be re-written to recognise new nations within a state (as happened in the UK in 1998); constitutional powers can build incrementally through civil society (academics, the media, non-governmental organisations, the third sector, public support and, today, even private firms) which can support or undermine the way devolution is received and accommodated by other government and non-government agencies.(44) Here then the capacity of any territory to hold onto or, in the case of new nations, to embed or retain them rests on many non-state factors such as cultural, social and institutional support from within its borders. In many Western states the utility and function of this social capital has been questioned but it is clear that, if it is strong, civil society and informal supportive structures can help to sustain more effective and supportive communities.(45) Most research posits that 'traditional' communities built on geographic area and on strong personal ties are disappearing or weakening and this underpins the feeling that it is necessary to govern through crime and control, often through more centrally controlled systems. However, this trend is not the same in Wales where the 'traditional' community based on kinship and location is still strong, visible and supportive as are ties built on shared misfortune.(46) Retaining the community ties, partnership working and supportive rather than controlling structures both formal and informal are essential to the well-being of such areas(47) and may facilitate self-help by communities. They are also important in relation to Welsh devolution. In non-devolved areas like criminal justice protecting the social capital depends also on how effectively civil society and its structures work with and support the political elements to ensure that local ideals are entrenched and respected in criminal justice practice.
Pre-devolution in Wales whilst the local community was strong, informal governance structures were less evident, the desire for devolution was based more on language, culture and community.(48) In this governance vacuum there was a real danger that Wales might evolve as an ethnic national order,(49) one whose identity was fixed by language and culture, one in which inclusion was given not chosen.(50) Norman (2006) posits a model in which a devolution experiment might permit local minority cultural identities (particularly those which feel they have been crushed in a broader nation) to flourish possibly to the exclusion of other minorities.(51)
'[E]thnocultural minorities do not go quietly anymore; assimilationist nation-building projects tend not merely to be ineffective – they also usually backfire by reinforcing and "nationalizing" minority cultural identities'(52)
This possibility was real and partially underlay the rejection of Welsh devolution in 1979 and the very narrow margin of its acceptance in Wales in 1998 (50.3% of a 50.1% turnout - the majority of voters in counties bordering England and in Pembrokeshire and Cardiff rejected devolution). In order to build an inclusive nation, one which might flourish in the multi-culturalism of today it is necessary to shape broad concepts behind which various cultures or groups can coalesce to build an effective and accepted government and governance.(53) Lisa Miller (2008) claims that without an ideal around which a civil society can coalesce broad democratic participation in policymaking is muted, sometimes silenced, making devolved government difficult, less likely to flourish and less democratic. Therefore it is the fact of a guiding ideal which is essential; its content and whether it is accepted as valid is secondary, though still important.(54) In Wales there has been a building of central ideals, it started with the strong ties to inclusiveness insisted on by the Welsh Labour Party(55) and was buttressed through s.120 of the Government of Wales Act 1998 which requires the National Assembly to ensure that its functions are exercised with due regard to "equality of opportunity for all people" including age, religious discrimination, economic well-being, social justice, language etc., aspects not always protected by equality legislation in the rest of the United Kingdom. Furthermore, the WG must positively guarantee equal respect for everyone in all aspects of their work. Therefore, from its inception, the WG has been tied to and focused on delivering the founding principles of inclusiveness,(56) equality, social justice(57) and building of the language and managed, so far, to resist the pitfalls of ethnic nationalism. The WG has built these principles (which they see as collective goods) into many policy statements (e.g. One Wales)(58) and delivery of services and though this have built a civil nationalism which most sections of society in Wales can recognise as part of their identity (a 'dragonisation' of policy(59)), as evidenced in the greater support for full law making powers for the WG in the 2011 referendum (63.49% of the low turnout, 35.63%; all bar one local authority area voted for greater powers for Wales) and the even stronger support for powers in Wales evidenced in a YouGov poll taken in February 2013:(60)
Figure 1:
YouGov into Potential Silk 2 issues, February 2013. % answers to the question:
Which level of govt OUGHT to make the most important decisions for Wales?
This clear and firm base of the common value of equality, social justice and respect for individuals, along with an inclusive pattern of social interaction and governance, has allowed the building of a defined policy on inclusive community where individuals and communities/groups are nurtured and where support and community are important both to the individual and to the collective. This has driven a social justice agenda and can be seen in the 'progressive universalism' of the WG - ideas such as free bus passes for the elderly and free swimming for children, free prescriptions, respect for wide educational goals and student grants etc. It is also evident in the naming of ex-offenders (especially prisoners) as priority groups for housing (alongside the elderly) and in the provision of some £10 million from the health budget to provide support for ex-offenders in dealing with substance misuse. Such an agenda fits the closer community ties found through most of Wales where local structures and community support are still important(61) and strong but complex.(62)
From 1998 – 2010 the Labour Government (Westminster) professed a devolution agenda but, in many areas of Government, this was set against the backdrop of closer central scrutiny through target setting; whilst implementation of services appeared devolved the targets ensured central, Westminster, control. On its face the Coalition Government's (2010-15) commitment to localism and rejection of targets looks more favourable to devolution. Their localism and 'active citizenship' (positive social capital) policies would seem to resonate with Wales' powerful ethos of community cohesion. Halpern(63) suggests societies do best where people trust each other and have shared values ('hidden wealth'). However, this positive social capital is often elusive and, without careful protection of minorities, can increase the challenges of equality.(64) Also the 'hidden wealth' is still intended to deliver Westminster 'standards of behaviour' and, in Westminster, the protection of equality, inclusiveness, and human rights are less central to core policy making. Therefore, although superficially resonating with the strong social capital and community cohesion experienced in Wales the way in which localism and 'active citizenship' are used, the more detailed and nuanced ideas behind them, means they are rather alien in the Welsh context. They run counter to: the 'progressive universalism' of the WG; the inclusiveness and social justice agendas which are at the heart of Welsh devolution;(65) and genuine cohesive bonds which are apparent in strong integrated communities.
5. The Building of Civil Society in Wales 1999-2009: Seen through Criminal Justice
Criminal justice and policing remained a joint England and Wales function controlled from Westminster and therefore legally Wales had no influence. Pre-devolution whilst some heads of agencies and workers used their discretion/autonomy to deliver functions differently in Wales this was usually due to particular needs e.g. rurality rather than in order to operate a different policy agenda. Much criminal justice activity relies on other, devolved, functions such as education, health and housing. Since 1998 the WG has used the leverage this provides to carve out a role and to ensure its form of 'collective good' is respected within policing and criminal justice. Agencies have generally been convinced of the utility of this within the Welsh context and, along with the growing civil society, have often come together to begin to deliver that policy so helping to extend and stretch the reach of Welsh devolution.(66)
Pre-devolution all government agencies and most third sector agencies/organisations were controlled from a head office in England and their representative in Wales (if any existed) had little, if any, policy or decision-making powers. Devolution changed this nurturing the building of a civil society. The WG and its growing polity joined in spelling out an agenda in which community, social justice, diversity, community regeneration, social inclusion and equality were prioritised(67) over crime control and criminal justice. Basically setting out a welfare reintegrative approach where rebuilding social ties and recognising the right of individuals to live with us even after they have transgressed (and possibly been punished), a form of 'justice reinvestment'.(68) In the case of Wales it might be more correctly termed 'justice investment' as social policies invest in local communities and in the idea that each individual should be nurtured to enable them to fulfil their potential as individuals and members of local communities.(69) This is an agenda different from that in England where there is a crime control led social policy;(70) a broadening of control, especially of the young, to encompass nuisance behaviour;(71) a tendency to govern though crime;(72) an 'intensification of punishment';(73) and an emphasis on control.
Despite not being a devolved area of operation criminal justice saw many moves to build a civil society in respect of criminal justice decision–making and delivery of service. As noted by Jessop(74) some of this was engineered by the central state, some by the devolved national power and some evolved more organically. For example:
- Taking control of youth justice has, from early on, been a priority in Wales. In 2001 Wales set up the first Children's Commissioner in the UK and, in 2004 set up an All Wales Youth Offending Strategy which brought in the policy of "children first, offenders second"(75) (delivery plan, 2009)(76) and made clear that all children needed to enjoy their rights and entitlements(77) and be treated with care and dignity even where they transgressed criminal law.(78) In 2012, the WG set out an agenda to ensure that it delivered United Nations Convention on the Rights of the Child (1989) rights (UNCRC) to children throughout Wales and across all aspects of provision, including youth justice. The Youth Offending Wales Bill (2012), if passed, will strengthen Welsh delivery of services and ensure they are underpinned by the UNCRC (1989) and chime with its 2004 strategy to put the young person first and deal with what they have done second. To legislation is going through the law making process.
- The Home Office Crime Team in Wales is situated in the WG and was set up to ensure proper lines of dialogue between Westminster and Cardiff on Home Office matters, it is responsible for the National Crime reduction Strategy. Criminal justice matters are split between different Westminster Government Departments (Home Office, Ministry of Justice, and the Attorney General's Office) and they are not all equally represented in Wales;
- The WG made efforts to work with other criminal justice groups such as National Offender Management Service (NOMS) Cymru (when it existed), the All Wales Criminal Justice Forum and YJB Cymru, in many instances the relationship was (is) very positive and where possible WG and Westminster policies are delivered in tandem though legally Westminster policy takes precedence;
- The Crime and Disorder Act 1998 placed power and responsibility in democratic local bodies to work alongside the police to plan for safer communities and enjoined other state organisations to work in partnership to deliver community safety. In Wales this fell to Community Safety Partnerships (CSPs) which design and ensure delivery of initiatives to increase safety and wellbeing. They are overseen by the WG and the Home Office Crime Team in Wales and also the NOM team (probation is represented in the partnerships). Welsh CSPs, emboldened by the inclusive and open Welsh national governance, have built systems of partnership working which include state (devolved and non-devolved) and voluntary sector organisations (VSOs) and operate in an environment where real trust and interdependency between the various agencies developed. This partnership working has been hard won, still needs considerable work, but is bearing fruit and the agencies (statutory, third sector and other) believe in partnership working as the way forward.(79) CSPs were key collaborators in the WG's (2006) consultation concerning a strategy to reduce reoffending in Wales which brought to the fore Welsh issues such as community and social justice, bringing offenders home and diverting offenders from custody(80) as well as policies to re-house them and support them in dealing with problems such as substance misuse.
These differences in approach suit both the geographies and communities in Wales. Services need to be differently delivered over vast areas in Wales, its rurality, demographic diversity and paucity of public transport leads to the need for more local, often out-reach service delivery or community self-help for it to be effective. So access to drugs or needles for substance misuse will often be delivered through local chemists and mentoring and turnaround services may be delivered in or near people's homes rather than in a centre(81). Such service delivery depends on greater partnership working to pool services or share properties from which different services can be delivered, this requires voluntary, and inter-dependent partnership working, in stark contrast to 'mandated partnerships'.(82) In many areas of Wales the CSPs have realized this level of partnership working but it has taken time to achieve this and will need constant support to ensure continued trust(83) and to allow partnership to build still further. Also approaches such as Integrated Offender Management (IOMs) has grown from within local partnerships, offenders agree to certain restrictions and in return are provided with support and services so providing a holistic and integrated approach – dealing with offending problems and offender needs together. Despite criminal justice remaining with Westminster the WG has built on these structures through things like its' Safer Communities Programmes (2011 and 2013)(84) designed to tackle crime and anti-social behaviour in a supportive way. The WG and many of the generally new civil society structures in Wales work to protect delivery of social and criminal justice through local structures which are more likely to guarantee community ownership.(85) Stronger real community has led to lower level and entirely practical (voluntary) partnerships such as the Women of Wales Alliance in North Wales.(86) This group formed to proactively deliver services which 'fit' local needs rather than those which blindly delivered constantly changing national priorities.(87) Each member and the collective recognised this as necessary to efficient and effective delivery as well as to sustaining a vibrant community, fostering inclusion and so helping individuals live within their communities.
Probation and offender management are also Westminster policy areas but ones which, for a period of time, developed a devolved system. In 2004/5 the National Offender Management service (NOMS) was set up and shortly thereafter it established nine regional offices in England, each with a regional Manager. In Wales there was an enhanced regional office (NOMS Cymru) with a Director of Management Services who could oversee the management of offenders in Wales, design strategies, commission Welsh services and ensure that good regional and local partnership requirements were in place:
"We acknowledge the uniqueness and differences within Wales and that is why in terms of the National Offender Management we have a Director of Offender management in Wales as opposed to a Regional Manager [in charge of operations] as we understand Wales' position."(88)
Clearly NOMS Cymru was accountable for the delivery of Westminster policy, but to do so in harmony with Cardiff (WG) policy.
Increasingly from 1998 to 2009 the WG was influencing policies in the criminal justice arena, causing their different policy ideals to be delivered or at least considered even by non-devolved services. In 2007 the One Wales policy document stated:
"A full debate with the legal community on the creation of a separate criminal justice system for Wales is inevitable if the National Assembly gains greater powers."(89)
The Silk Commission started the discussion of a separate criminal justice system and, as seen in figure one (above), there is solid support from the people in Wales for policing and law and order to be devolved. Alongside such public support has been a real impetus on the part of 'legal Wales' to alter the administration of justice.(90) The WG has used its autonomy intelligently to push the devolution boundaries and increase its influence (especially in delivery of youth justice), but consideration of devolved control over policing and criminal justice still has a way to go. How has civil society survived in recent years? Has it continued to build and strengthen so helping to build devolution or is it retreating and so possibly undermining it? If civil society is weakening might this be damaging to the devolution story in Wales?
6. Civil Society and Criminal Justice 2010-2013 – Undermining Devolution?
From 1999 until 2009, despite target setting, civil society in Wales was steadily growing in confidence and reach and supported the ideals of the devolved power in Cardiff, even in non-devolved areas of governance. As with the formal legal constitution the changes had generally been supportive of ensuring that devolved and non-devolved services worked together harmoniously delivering on both Westminster and Cardiff requirements. Devolution, both through formal and informal mechanisms, significantly altered approaches to solving problems in Wales even in non-devolved fields such as criminal justice. Where the devolved and non-devolved services are clearly interwoven, as is the case in many aspects of crime and criminal justice there were and are tensions in differing Westminster and Cardiff perspectives. So, for example, substance misuse can be seen either as largely a criminal justice and control issue (Westminster) or largely a health and community issue (Cardiff). In such cases the WG, structures such as CSPs and Westminster looking services such as the police worked together to ensure that each perspective was satisfied. However, since 2010 some of the aspects of civil society which underpin this delivery of competing policy aims have begun to unravel.
The positive work of CSPs in building strong and trusting partnerships and in local delivery of services is under threat on a number of fronts. Firstly, the formation of Police and Crime Commissioners (PCCs) has stripped them of almost half their finances. Prior to 2010 most Welsh CSPs received about 40-50% of their funding from Westminster through the Home Office Crime Team in Wales; about 30% from the WG through the Safer Communities Fund and about 30% from local authorities. The Home Office funding has been reduced (and will be removed) and given to PCCs as part of their budget. So whilst the CSP remit required by the Home Office has remained broad and, in some areas has been widened (e.g. the role they play in Domestic Homicide Reviews), they have been stripped of funding and in many cases therefore lost staff and other resources so are less able to fulfil their function to deliver initiatives to effectively increase safety and wellbeing. The nature of their work and the community delivery will, in future, be largely shaped by PCC decisions as they hold much of the funding. PCCs can therefore take control of commissioning of criminal justice and community safety matters despite accountability for the latter sitting with CSPs. PCCs have no requirement to take account of Cardiff policies and, if they see fit, can set agendas which will strain and possibly undermine both the nascent 'dragonisation' of criminal justice through social integration and local partnership working and integrated delivery of services.
The PCCs have also been given control over how local policing will be delivered. There is no requirement on PCCs to engage with the WG or take account of the special Welsh context and the 'collective good' in Wales.(91) To have any influence over policing the WG and CSPs will need to forge partnerships and relationships with local PCCs. This process will be fractured both because there are four PCCs in Wales each of which may develop different relationships with both the WG and their local CSPs and because the negotiations may need to be restarted every four years, with each new incumbent to the post of PCC. This may destabilise WG plans and delivery of services rendering it difficult to ensure stable community support for social inclusion policies. Therefore, through their different conception of 'local' PCCs may at least strain spatial contexts to question the geopolitical, social and cultural ideas institutionalised by the WG.
Secondly, since 2009, some criminal justice organisations have retracted or reduced their operations in Wales and this begins to destabilise the fragile foundations of a separate criminal justice system in Wales. For example, as noted above NOMS Cymru used to have a lot of sway over the role-out of offender management in Wales which was sensitive to delivery of WG policy alongside that of Westminster. However, in early 2011 and despite the localism agenda (Localism Act 2011), the English regional offices of NOMS and that in Wales were closed. Wales retained a Deputy Director overseeing public sector prisons in Wales (only part of their remit); a lessoning of the recognition of devolution in central government. More recently Wales has again won a separate NOMS Director (starting in April 2014) of all probation and prisons business though this office is likely to have fewer powers than pre-2010; it is unlikely to commission separately. It's exact structure and powers are still being discussed though its formation is recognition of the devolved Welsh system and may again facilitate the application of both WG and Westminster policy in Wales. This clearly suggests some lessening of Cardiff influence but still a respect for devolution and the civil society networks which it has encouraged. Here the build up of networks and their involvement through devolved and non-devolved processes may have constrained the future and facilitated recognition of the difference encompassed in Wales. This is phase space in operation permitting Wales greater space within NOMS than might be expected if it were merely a regional division such as that in England. However, it needs to be set against another change. In Wales, as in England, probation services are about to change and the new public National Probation Service will only be responsible for assessing offenders' risk, managing high risk offenders and delivering public interest decision making. All other probation services that are not reserved to the public sector will be organised into 21 Contract Package Areas (CPAs). On May 9th 2013 the Ministry of Justice published "Transforming Rehabilitation – A Strategy for Reform", in which it was announced that Wales would be one distinct CPA which, along with the public sector probation service is expected to deliver a distinct Welsh identity (again a recognition of devolution). This delivers some Welsh identity and support for civil society though not as strong as pre-2010. However, the strong civil society may well have helped to shape and constrain these bodies.
Linked to this and possibly the most significant change is Payment by Results (PbR). The coalition is committed to localism which might favour devolution. However, the current emphasis on central (Ministry of Justice or NOMS, London) contracting of criminal justice services through PbR means that Westminster control over local services is strengthened. Delivery may be local as large organisations sub-contract delivery to smaller local agencies (often small VSOs) but control will be through the contract and will be clearly to Westminster outcome targets. Whilst NOMS Cymru used to commission its own work in Wales and could take account of Welsh needs, all contracts now emanate from the Ministry of Justice in Westminster with no guarantee to be mindful of Welsh needs. The contractual 'results' will be those set in London. Under this regime taking account of Cardiff policy initiatives seems less likely, certainly more difficult. There is no guarantee of a mechanism for ensuring that Cardiff's policy is respected, especially if that is counter to the policy from Westminster. Contracts and bidders for commissions Community Rehabilitation Companies (CRCs) may span parts of both England and Wales and this could well undermine or jeopardise the 'dragonisation' of community safety and criminal justice policy. How and whether the newly strengthened civil society in Wales will be included in or will be a context which might help shape these contracts remains to be seen.
The tensions from PbR suggest larger contractual partnerships and coalitions of organisations are likely. PbR partnerships are unlikely to be local or spatially defined and may not be accountable to local needs and desires, rather they will be commercial and contractually defined and controlled. Many will be controlled, or partially controlled from outside Wales e.g. the delivery of the Welsh Women's Turnaround services comes from Platform 51, an organisation based outside Wales. Although possibly intending to deliver services at a local, community, level it is not part of that community, not part of the social capital or civil society in Wales and therefore has been less knowledgeable about and included in Welsh social policy initiatives and ideals unless they are clearly set out in, or useful to, the contract. Large PbR contacts are likely replicate this slight disconnect from devolved structures unless they are useful to fulfilling the contract. The contractual context will be focused on Westminster policies (the contractual requirements) and whilst delivery will be local it will be to that contract, not necessarily to local needs or community based initiatives. The saving grace may be that contracts will focus on delivery of the required outcomes such as lower rates of offending; local service providers can use any methods or processes to achieve this so, in theory, permitting a Welsh context. In fact this commercial route may increase Welsh influence because Welsh civil society may prove essential or at least powerfully beneficial to delivery of contractual requirements. However, the commercial pressures may reduce experimental services as they will be 'gambling' with profits. Here delivery of any policy agenda may be lost – everything will depend on the contract.(92) The contracts in PbR will focus on reducing reoffending, the contract holder will aim at service provision (contractual) at low cost. It seems likely therefore that providers may only taking on the easy cases (cherry picking or cream slicing) or they will appear to take on all cases but only working with the ones who are easy to 'turn around'(parking)(93). Each of these will appear to fulfil the contractual obligations; each will fail to deliver inclusive and social justice; Welsh context may fail. Here the constraining and contextual effects of civil society are very difficult to predict as commercial elements play out in a very different contextual way, interested in delivery and profits rather than broader policy context.
PbR is also likely to alter close partnership working, it may pit partners against one another to win contracts so fragmenting services. When organisations are in competition, the information sharing which is essential to effective partnership criminal justice work becomes more difficult; information becomes part of an organisations' value The WG has prioritised finding a safe and legal way to facilitate information sharing and written The Wales Accord for the Sharing of Personal Information.(94) This accord is intended to begin to underpin Information Sharing Protocols between agencies and organisations. It has taken years to build the trust and persuade partners, all this may be undermined if an organisation's information becomes a valuable asset, giving them a competitive edge against others working in its area. Therefore unless careful PbR may obstruct a Welsh context and policy which has taken time to nurture.
Some areas have smaller, more specialised and less official groups of organisations, formed to ensure supportive, efficient (preventing overlap) and effective delivery of specific agendas e.g. Women of Wales Alliance formed to support the women's turnaround project and the needs of women more widely. However, with scarcity of funding, greater pressure on workers (in the public, private and third sectors) and more competition in the winning of contracts these groups are under threat. Being unfunded these base-line agents of civil society are fragile and may be undermined. As far as we know, the Women of Wales Alliance, for example, failed to survive the general reduction of resources in the criminal justice sector and in 2012 meetings of the Alliance ceased, other, more mainline, partnerships are more robust. Partnership working in Wales is taking time to nurture and grow into a supportive, positive and functioning system(95) . These aspects are true in English regions as well but WG focus on cohesion, social justice and community depends even more heavily on close partnership working, so is more damaged if it fails.
Other aspects of civil society are also of importance. A strong press, supportive populace(96) and active academia can be important to emerging powers particularly those, like Wales, still building a strong social and political identity.(97) No region operates above or detached from human beings or communities and therefore all social constructs, structures and discourses feed into and strengthen or weaken their reality.(98) The Welsh media is not large, nor as influential as that in Scotland or Northern Ireland and whilst a Welsh academic criminology is emerging it is still not fully formed nor confident, it is only slowly building its evidence base which might prove the worth (or otherwise) of the 'dragonisation' agenda. Funded criminological research in the Welsh context is, like all UK research, heavily influenced by the call for neoliberal quantitative 'proof' of effectiveness. Slowly, however, the more nuanced and layered evidence found in qualitative research is being brought to the fore and accepted by the WG and other research funders in Wales as illuminating the way in which those living in Wales experience and interpret their social world and changes to services and policy.(99) The nexus between the advancing of a Welsh criminal justice approach and academia is strongest in youth justice.(100) However the growth of both media and academia in terms of criminal justice is new and insufficiently advanced to have influenced the minds of the general population. It has, however, provided some information for those working within agencies to assess the value of their recent work. If Wyn Jones is right about the feelings of the broader population in Wales towards the growing devolved power then it has fairly strong internal support.(101)Whilst academia, the media and other 'soft' aspects of civil society can never directly affect devolution it can provide an evidence base to inform an intelligent debate and can develop an information system from which others can question particular political moves or the undermining of mechanisms which are important to support or further a particular political stance, it is part of the discourse surrounding devolution and the social constructs in a particular area, it can play a small part in shaping the governance of particular places (see a similar argument in the case of rights abuses).(102)
7. Conclusion
Devolution in Wales has been rapidly evolving, strengthening and delivering more powers to the WG and the Assembly. Whilst the lack of political and legal maturity may be over-stated it is true that in 1998 Wales enjoyed a strong language, culture and community(103) and a clear and long-lasting belief in social justice and mutual support evident through political struggles and voting throughout the 19th and 20th centuries and through continued existence of strong communities.(104) What it lacked was the political and supportive mechanisms necessary for clear and effective governance. For constitutional and legal devolution to be effective new official governmental mechanisms were necessary as were changes in governance and in the delivery of policy and services. So, devolution saw growth in official structures as well as in more complex and fluid political, social and civil networks and processes. Some of these systems and networks already existed, others are new, but all have grown, changed and matured since 1998. If relational space and phase space are correct all of these networks (official and others) are part of Welsh nation-building. They have grown out of strategic actions in social, economic and political problem solving and the search for pragmatic solutions which work for Wales, which are not controlled by but do not ignore the culture and history of Wales (and its language). Each of these (and the WG) has also kept close social, political, cultural and legal links and networks between Wales and the rest of the United Kingdom, Europe and beyond, it has been embedded in a more global network. Having started with a fairly blank page, Welsh policy was not trapped by culture and language(105) nor by the past. Rather it used these to shape a new way forward: one led by inclusion and social justice. The policy sets out the ideal for Wales which services and their practitioners seek to deliver. The WG find opportunities to embed their social justice approach into non-devolved areas and exploit these to extend the reach of devolution and provide Wales with an over-arching ideal. The forging of an ideal or guiding principle (whatever its content) lends government meaning against which it can be called to account(106) and, when accepted, acts as a catalyst to strengthen civil society by giving it a shared understanding.(107)
Wales, the National Assembly, Welsh civil society and its people operate, are shaped and given strength or stifled by various political, legal and other interactions both within Wales and from outside. These complex webs of interference, control and partnership within, across and above Wales are constantly altering and suggesting different possible futures which might arise under various circumstances (what Jones(108) refers to as phase space – the effects of different policies and approaches and the futures these may open up). This paper has studied some of these, particularly the growth of Welsh civil society and its resilience in the face of policy changes from Westminster; in particular the part played by civil society in the shaping of governance in any particular place.
Relations between Cardiff and Westminster have altered: Cardiff has grown in political and legal experience and strength; changes in economic and political situations in Westminster have altered the way in which Cardiff and its policies are accommodated and respected. The Silk Commission is about to conclude its work, it seems likely it will suggest some strengthening to devolution. Westminster will then need to decide whether to act; it has the power to extend or broaden devolution, leave it constant or even claw back powers. Which future emerges - a strengthening or stifling of devolution and its civil society - remains to be seen. What this study suggests is that despite certain aspects which might have been expected to weaken the reach of the WG this has not yet been the experience. The elasticity of civil society seems to have protected it.
More clearly constitutional and legal aspects have also played a part: some Coalition Government actions such as referring, or seriously considering referring, Welsh (Bills) to the Supreme Court have questioned the use of power by Cardiff. This might suggest different futures: winning the case might have emboldened the WG in its law making and encourage it to push the boundaries; however, to avoid referral of future Bills Cardiff may be circumspect, passing laws well within its vires even when, to deliver the inclusive social justice it is committed to, broader use of power might be more effective. In other words the constitutional challenge may already have damaged devolution– overly cautious legislating will stifle the progress of devolution. This might even occur unconsciously, through careful and narrow drafting. What is suggested from studying civil society in Wales is that whilst that is one possibly future reality it may not be the most likely. The strong civil society might bolster confidence and push the WG to go to the boundaries of its vires, to take confidence in its policy and guiding principles. However, it is still true that only full reserved powers law-making, as in Scotland, can prevent a cautious approach, can deliver a certain future.
Other Government actions and policies have questioned the use of power by Cardiff or rendered some civil society actions more difficult. PbR and the setting up of PCCs both clearly impact on service delivery of not only criminal justice (non-devolved) but social justice (devolved) areas. Both PbR and PCCs encompass a type of localism which moves power closer to people but one which ignores broader questions of governance, oversteps (and, to an extent, undermines) devolved powers and appeals to more local issues and needs(109) whilst using commercial (contractual) constraints to ensure that the local approach stays clearly in line with central, Westminster, requirements.(110) These contractual arrangements are unlikely to respect either communities or real, social or politically important spatial boundaries (devolved or other), unless this is beneficial to delivery of the contract. Communities, citizens and volunteers will be supported and encouraged to get involved; rewarding, possibly expecting, social responsibility. However, this does not support or deliver either the inclusive or social justice ideals of the WG or its Assembly. This will be a commercial situation, controlled by a contract which may not recognise or respect local boundaries local partnerships and local delivery of services, unless they serve the contractual/commercial interests. Again this outcome is not definite but is increasingly likely. The extent to which it can damage, slow down or roll-back devolution is unclear, however, the potential is there. What is suggested by the application of the theoretical analysis of relational and phase space is that this future is far from settled. The strong civil society has helped devolution weather some problems and may continue to do so. The interface of criminal justice agencies with the devolved agenda illustrates how the WG embraced non-devolved as well as devolved areas in its civil society; this desire and drive to include everything and to discuss and agree how Westminster policies might best be delivered in Wales allows an elasticity to devolution which phase space theory would recognise as a protective factor; one of the contextual realities which helps sustain and support the constitutional position.
Wales is a modern liberal democratic society which shares many of the values of the United Kingdom and of each of its nations, values globally recognised. However, Wales has used its new powers and social structures to shape a civil and political identity different from those in the rest of the United Kingdom. Since 2010 this new identity has been weakened by some Westminster policy, highlighting weaknesses in the devolution settlement. Whilst there may be doubt over further constitutional and legal devolution it seems that the less formal groupings have taken on a will to grow and mature. Whether Welsh devolution continues to strengthen and flourish depends partly on the actions from Westminster but also on whether and to what extent the WG and the new Welsh civil society pull together. The future of Welsh devolution is not certain and depends not only on law and formal constitutional rules but also on extra-legal supports - it needs the support of civil society to call communities, individuals and new devolved powers together to build and buttress these mechanisms. In the Welsh context the real driving force throughout has been a shared ideology - a desire for social justice and for an inclusive society. This ideology has meant that for the WG and local delivery of services in Wales this local empowerment, responsibility and decision-making has meant more than local decisions. It was embedded in the belief in genuinely inclusive governance needed to build a modern and responsive polity (even though it is not always perfectly delivered there is a constant and ever-present desire and drive towards inclusive government). This may yet serve to support and strengthen Welsh devolution.
Through this close-knit account the devolution story has been partially mapped and the present theoretical debates on contemporary state restructuring have been tested and, to an extent, found wanting. Just as globalisation provides the glue to certain economic, policy and legal, especially human rights and justice based international interactions, so civil society and its complex and elastic web may provide the glue to protect a devolved authority from interference from outside, even powerful interference. Whilst the literature on new regionalism and relational space recognised the central role played by networks and social capital it has, more recently been strengthened by the broader analysis that phase space permits: mapping devolution through time to embed an understanding of the structures and their strengths and weaknesses so permitted a more intelligent analysis of what may happen. Here the strength offered by both a shared ideal and a civil society intent on delivering that ideal are powerful networks protecting the constitutional reach of devolution. The ultimate question, and one that the theoretical ideas do not consider is the extent of the elasticity of civil society – it will stretch but will it break?
(1) John Rawls, A Theory of Justice. (Harvard University Press 1971)
(2) Ferran Requejo, 'European Citizenship in Plurinational States: Some Limits of Traditional Democratic Theories: Rawls and Habermas' in Ulrich Preuss and Ferran Requejo (eds), European Citizenship, Multiculturalism and the State (Baden-Baden: Namos 1998)
(3) See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights. (Oxford University Press 1995); Ferran Requejo, 'European Citizenship in Plurinational States: Some Limits of Traditional Democratic Theories: Rawls and Habermas' in Ulrich Preuss and Ferran Requejo (eds), European Citizenship, Multiculturalism and the State (Baden-Baden: Namos 1998)
(4) Vega Symposium, 'The Political Challenge of Relational Space: The Vega Symposium', [2004] Geografiska Annaler: Series B 86: 3-78
(5) Martin Jones 'Phase Space: Geography, Relational Thinking, and Beyond' [2009] 33 Progress in Human Geography 487-506.
(6) Kymlicka, 1995 (n 3).
(7) Michael Keating, Nations Against the State: The New Politics of Nationalism in Quebec, Catalonia and Scotland (2nd Ed. Palgrave 2001).
(8) W. Norman, Negotiating Nationalism: Nation-Building, Federalism, and Secession in the Multinational State. (Oxford University Press 2006).
(9) Kymlicka, 1995 (n 3).
(10) B. Jones and J. Osmund (eds) Building Civic Culture: Institutional Change, Policy Development and Political Dynamics in the National Assembly for Wales (Welsh Governance Centre, Institute of Welsh Legal Affairs, Cardiff 2002); Keating (n 7); Kevin Morgan and Geoff Mungham Redesigning Democracy (Seren 2000); Richard Rawlings Delineating Wales: Constitutional, Legal and Administrative Aspects of National Devolution (Politics and Society in Wales Series, University of Wales Press 2003).
(11) Will Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity. (Oxford University Press 2007).
(12) Bob Jessop, Multi-level Governance and Multi-level Mega-governance. (Lancaster: Department of Sociology, Lancaster University 2001)
(13) Anthony Giddens, The Third Way: The Renewal of Social Democracy. (Polity Press 1998).
(14) Tony Blair, 'Speech on Britishness and the Government's Agenda of Constitutional Reform', (London: Labour Party 2000: 2)
(15) Richard Wyn Jones and Roger Sully, Wales Says Yes: Devolution and the 2011 Welsh Referendum (University of Wales Press 2012).
(16) Ibid.
(17) Raymond Williams, Who Speaks for Wales? Nation, Culture, Identity. (University of Wales Press 2003).
(18) White Paper (1997), A Voice for Wales: Welsh Office White Paper, Cm3718, London: HMSO.
(19) Anthony Wright, Citizens as Subjects: An Essay on British Politics, (Routledge 1996: 92-112).
(20) Ruth Lister, 'From equality to social inclusion: New Labour and the welfare state' [1998] 18(55) Critical Social Policy 215-225.
(21) Ron Davies, 'Regeneration of the Valleys: speech by Ron Davies MP, shadow secretary of state for Wales, Treoechy, November 1992', found in Empowering the People : response to the Labour Party's Consultation Paper, Shaping the Vision: Powers and Structures of the Welsh Assembly' Parliament for Wales Campaign (1994), Cardiff: PWC, 10; Ron Davies, BBC Interview 'On the Record' 4 February 1996 (BBC1) transcript found at http://www.bbc.co.uk/otr/interviews95-96.shtml; Ron Davies, Hansard House of Commons 22 July 1997. 298:Col 757; Ron Davies, Devolution: A Process not an Event Gregynog papers 2.2 (Institute of Welsh Affairs 1999); Peter Hain, A Welsh Third Way? (Tribune Publications 1999); Wales Labour Party New Labour: New Life for Wales (Cardiff: WLP 1996); National Assembly Advisory Group (1998) National Assembly Advisory Group Recommendations Cardiff: NAAG.
(22) Graham Day, 'Chasing the Dragon? Devolution and the Ambiguities of Civil Society' [2006] 26(3) Critical Social Studies 642- 655.
(23) Paul Chaney and Ralph Fevre 'Ron Davies and the Cult of 'Inclusiveness': Devolution and Participation in Wales', [2001] 14(1) Contemporary Wales 31-46; Paul Chaney and Ralph Fevre '"An Absolute Duty": An Evaluation of the First Five Years of the Welsh Assembly's Statutory Equality Duty', [2004] 3(2) Wales Journal of law and Policy 135-156.
(24) Calman Commission (2009) Serving Scotland Better: Scotland and the United Kingdom in the 21st Century. Edinburgh: Commission on Scottish Devolution. http://www.commissiononscottishdevolution.org.uk/.
(25) Richard Wyn Jones, 'A Permanent Revolution: Welsh Devolution 1997-2007,' [2008] 17 Babel [Toulon] 295-314.
(26) Richard Commission (2004) Report of the Richard Commission: Commission on the Powers and Electoral Arrangements of the National Assembly for Wales Cardiff: National Assembly, especially Chapter 9 pp. 191-195. Found at http://www.richardcommission.gov.uk/content/finalreport/report-e.pdf.
(27) White Paper (2005) Better Governance for Wales. Cm 6582. Cardiff: The Stationery Office. http://www.official-documents.gov.uk/document/cm65/6582/6582.pdf .
(28) Sir Emyr Jones Parry, All Wales Convention Report (Cardiff, Crown Copyright 2009); Lord Justice J. Thomas, Our Changing Governance Structures: Clarity and Confidence St David's Day (Lecture at the Wales Governance Centre 2010). http://www.cardiff.ac.uk/europ/resources/WGC/St%20Davids%20Day%20Lecture%202010.pdf.
(29) [2012] UKSC 53.
(30) Silk Commission http://commissionondevolutioninwales.independent.gov.uk/
(31) Richard Wyn Jones, (2013) 'Devolution, Justice and Jurisdiction: The case of Wales' Paper presented to the first ESRC Seminar on Crime Control and Devolution Thursday April 18th, 2013. Cardiff University
(32) Silk Commission. Empowerment and Responsibility: Financial Powers to Strengthen Wales. (Commission on Devolution in Wales, 2012). http://commissionondevolutioninwales.independent.gov.uk/files/2013/01/English-WEB-main-report1.pdf.
(33) Jones Parry (n 28) at 73.
(34) Julian Buchanan, Jonathan Evans, Gordon Hughes and Katherine S. Williams (2010) 'Crime and the Criminal Justice System: Substance Misuse.' An Ideas Wales Policy Discussion Paper http://ideaswales.files.wordpress.com/2012/01/ideas-wales-substance-misuse.pdf (last consulted November 2013). Also available at: http://wccsj.ac.uk/publications-and-research/printed-publications.html
(35) Welsh Government Joining together in Wales: An adult and young people's strategy to reduce reoffending (2006: 5).
(36) Richard Commission (2004) Report of the Richard Commission: Commission on the Powers and Electoral Arrangements of the National Assembly for Wales Cardiff: National Assembly, especially Chapter 9 pp. 191-195. Found at http://www.richardcommission.gov.uk/content/finalreport/report-e.pdf.
(37) Rod Morgan, R. (2009) Report to the Welsh Assembly Government on the question of Devolution of Youth Justice Responsibilities. (Cardiff: Welsh Government 2009) http://wales.gov.uk/topics/housingandcommunity/safety/publications/youthjustreport/?lang=en (last visited October 2013)
(38) Silk Commission, Evidence 2013 http://commissionondevolutioninwales.independent.gov.uk/.
(39) Ibid
(40) Wyn Jones, 2013, (n 31).
(41) Richard Commission (2004) Report of the Richard Commission: Commission on the Powers and Electoral Arrangements of the National Assembly for Wales Cardiff: National Assembly, Page 27. Found at http://www.richardcommission.gov.uk/content/finalreport/report-e.pdf.
(42) Jessop (n 12); and Keating (n 7).
(43) Giddens (n 13).
(44) Jessop (n 12); Keating (n 7); and Jones (n 5).
(45) M. W. Foley and B. Edwards, 'Escape from politics?' [1997] 40(5) American Behavioral Scientist 550 – 561; Martina Y. Feilzer and Katherine S. Williams, 'Localism, Communities, and Women's Criminal Justice: A Welsh Perspective' [2013] 26(1) Contemporary Wales 79-98. (with Plows, A. and Yates J.).
(46) Nickie Charles and Charlotte Aull Davies, 'Studying the particular, illuminating the general: community studies and community in Wales'. [2005] 53 (4) Sociological Review 672-690 at 687; Dr. H. Cooper and Professor M. Innes, The Causes and Consequences of Community Cohesion in Wales: A Secondary Analysis. (UPSI, Cardiff University 2009). http://www.upsi.org.uk/storage/publications/community-engagement/Comm%20Cohesion%20in%20Wales.pdf.
(47) Charles and Aull Davies (n 46); Evans, Buchanan, Hughes and Williams, (n 34); Feilzer and Williams (n 45).
(48) Williams (n 17).
(49) Kymlicka, 2007 (n 11).
(50) Keating (n 7).
(51) Norman (n 8).
(52) Ibid. at xiii.
(53) Norman (n 8); and Keating (n 7).
(54) Lisa Miller, The Perils of Federalism: Race, Poverty, and the Politics of Crime Control. (Oxford University Press 2008)
(55) Wright (n 19).
(56) Mark Drakeford, 'Progressive Universalism', [2007] Agenda (Journal of Institute of Welsh
Affairs), Winter: 4–7.
(57) Mark Drakeford, 'Health Policy in Wales: Making a Difference in Conditions of Difficulty', [2006] 26(3) Critical Social Policy: 543-561.
(58) Welsh Government, (2007) One Wales – A Progressive Agenda for the Government of Wales. http://wales.gov.uk/strategy/strategies/onewales/onewalese.pdf?lang=en.
(59) A term coined to encapsulate a particular approach to government and particularly criminal justice in Wales, see Kevin Haines 'The dragonisation of youth justice', in W. Taylor, R. Earle and R. Hester (eds.) Youth Justice Handbook: Theory, policy and practice. (Willan, 2009).
(60) Wyn Jones, 2013 (n 31).
(61) Charles and Aull Davies (n 46).
(62) Cooper and Innes (n 46).
(63) David Halpern, The Hidden Wealth of Nations. (Polity Press 2010).
(64) Tracey Sagar and Jodie Croxall, 'New Localism: Implications for the Governance of Street Sex Work in England and Wales' [2012] 11(4) Social Policy and Society 483-494.
(65) Day (n 22).
(66) Vega Symposium (n 4); Jones (n.5).
(67) Drakeford, 2007 (n 56); Drakeford, 2006 (n 57); Day (n 22); Welsh Government, (2007) One Wales – A Progressive Agenda for the Government of Wales. http://wales.gov.uk/strategy/strategies/onewales/onewalese.pdf?lang=en.
(68) Green Paper (2010) Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders. London: Ministry of Justice; Commission on English Prisons, (2009) Do Better, Do Less: The report of the Commission on English Prisons Today. London: Howard League for Penal Reform.
(69) Adam Edwards and Gordon Hughes, 'Resilient Fabians? Anti-social behaviour and community safety work in Wales' in P. Squires (Ed.). ASBO Nation: The criminalisation of nuisance. (Policy Press 2008); Adam Edwards and Gordon Hughes 'The preventative turn and the promotion of safer communities in England and Wales: Political inventiveness and governmental instabilities' in Adam Crawford (ed.). Crime Prevention Policies in Comparative Perspective (Willan 2009); Evans, Buchanan, Hughes and Williams (n 34); Mark Drakeford, 'Devolution and youth justice in Wales'. [2010] 10(2) Criminology and Criminal Justice: 137-154; Feilzer and Williams (n 45).
(70) David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford University Press 2001); R. Coleman and J. Sim 'Contemporary Statecraft and the 'Punitive Obsession': A Critique of the New Penology'. Found in T. Pratt, D. Brown, M. Brown, S. Hallsworth and W. Morrison (eds.) The New Punitiveness: Trends, Theories, Perspectives (Routledge 2005).
(71) Adam Crawford, Crime Prevention Policies in Comparative Perspective (Willan Publishing 2009); Adam Crawford, International and Comparative Criminal Justice and Urban Governance (Cambridge University Press 2011).
(72) Jonatahn Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Studies in Crime and Public Policy. Oxford University Press 2007).
(73) Emma Bell, Criminal Justice and Neoliberalism, (Palgrave Macmillan 2011).
(74) Jessop (n 12).
(75) Welsh Assembly Government, (2004), The All Wales Youth Offending Strategy.at p. 3 http://wales.gov.uk/dsjlg/publications/commmunitysafety/youthoffendingstrategy/strategye?lang=en
(76) Welsh Government, (2009), The All Wales Youth Offending Strategy Delivery Plan. http://wales.gov.uk/docs/dsjlg/publications/090903youthoffendingstrategydeliveryplanen.pdf
(77) Welsh Assembly Government, (2004b), Extending Entitlement - Creating Visions of Effective Practice for Young People in Wales http://wales.gov.uk/topics/educationandskills/publications/reports/1412101151111?lang=en
(78) Stephen Case and Kevin Haines 'Putting Children First in Wales: The Evaluation of Extending Entitlement',[2009] 3-4 Social Work Review: 22-30; Haines (n 59).
(79) Edwards and Hughes, 2009, (n 69); Gordon Hughes, Stephen Case, Adam Edwards, Kevin Haines, Mark Liddle, Adam Smith and Sam Wright, Evaluation of the Effectiveness of the Safer Communities Fund 2006 – 2009. (Cardiff Working Paper 128, published July 2009) http://www.cf.ac.uk/socsi/resources/wp128.pdf
(80) See Mark Drakeford, 'Children First, Offenders Second: Youth Justice in a Devolved Wales', [2009] 78 Criminal Justice Matters, 8–9; Drakeford, 2010, (n 69); Edwards and Hughes, 2008, (n 69); Edwards and Hughes, 2009, (n 69).
(81) Martina Y. Feilzer, Alex Plows, Katherine S. Williams, and Joe Yates, An evaluation of the Women's Turnaround Service in North Wales. (Final Report to NOMS Cymru 2012). http://www.wiserd.ac.uk/wp-content/uploads/2010/03/WISERD_RRS_008.pdf; Katy Holloway and Fiona Brookman, An Evaluation of the Women's Turnaround Project. Final Report for NOMS Cymru. (Glamorgan University 2010); Welsh Government, (2008) Reducing Re-offending – the Voluntary and Community Sector Contribution in Dyfed – Powys http://wales.gov.uk/topics/housingandcommunity/research/safety/reoffending/?lang=en.
(82) G. Squirrell, 'Seeking Desistance in the Community: Drug Users' Experience of the Criminal Justice System'. [2007] 28(1) Therapeutic Communities, 59-73; Feilzer and Williams (n 45).
(83) Edwards and Hughes, 2008, (n 69); Edwards and Hughes, 2009, (n 69).
(84) Welsh Government, (2011 and 2013) Safer Communities Programmes http://wales.gov.uk/about/programmeforgov/communities/?lang=en.
(85) Edwards and Hughes, 2008, (n 69); Edwards and Hughes, 2009, (n 69); Drakeford, 2010, (n 69); Evans, Buchanan, Hughes and Williams (n 34).
(86) Feilzer, Plows, Williams, and Yates (n 81); Feilzer and Williams (n 45).
(87) Gordon Hughes and Daniel Gilling, ' "Mission Impossible"?: The habitus of the community safety manager and the new expertise in the local partnership governance of crime and safety'. [2004] 4(2) Criminology and Criminal Justice, 129-149 at 135; Feilzer and Williams (n 45).
(88) Mr G Sutcliffe MP. Oral evidence, House of Commons Minutes of Evidence to the Welsh Affairs Committee concerning the Welsh Prisoners in the Prison Estate. (12 December 2006)
(89) Welsh Government, (2007) One Wales – A Progressive Agenda for the Government of Wales. At page 29 http://wales.gov.uk/strategy/strategies/onewales/onewalese.pdf?lang=en.
(90) Keith Bush, 'New Approaches to UK Legislative Drafting: The Welsh Perspective' [2004] 25(2) Statute Law Review, 144-150; Keith Bush, 'A Tale of Two Cities: Legislating for Member Remuneration at Cardiff Bay and Westminster' [2012] 33(2) Statute Law Review, 141-150; Timothy H. Jones and Jane M. Williams, 'Wales as a Jurisdiction' [2004] Public Law, 78-101; J. Jones, 'The Next Stage of Devolution? A (D)evolving Criminal Justice System for Wales', [2008] 2(1) Crimes and Misdemeanours, 1–39; Iwan Davies, 'Legislating Between Equals' [2010] 41 Agenda, 22-25.
(91) Miller (n 54).
(92) Lorraine Gelsthorpe and Carol Hedderman, 'Providing for women offenders: the risks of adopting a payment by results approach' [2012] 59(4) Probation Journal 374-390; Rod Morgan, 'Crime and Justice in the 'Big Society'. [2012] 12(5) Criminology and Criminal Justice, 463-481; Mike Maguire, 'Response 1: Big Society, the voluntary sector, and the marketization of criminal justice.' [2012] 12(5) Criminology and Criminal Justice, 483-494.
(93) Ibid.
(94) The Wales Accord for the Sharing of Personal Information (WASPI). Cardiff: Welsh Government 2013. http://www.waspi.org/page.cfm?orgid=702&pid=50176 Now in its fourth iteration and about to get its first consortium.
(95) Hughes, Case, Edwards, Haines, Liddle, Smith and Wright (n 79).
(96) Wyn Jones, 2013 (n 31).
(97) Anne Alvesalo and Erja Virta, 'Researching Regulators and Paradoxes of Access' in S. Tombs and D. Whyte (eds.) Unmasking the Crimes of the Powerful, (Peter Lang Publishing, 2003); Penny Green and Tony Ward State Crime: Governments, Violence and Corruption. (Pluto Press, 2004)
(98) Anssi Paasi (2001) 'Europe as Social Process and Discourse: Considerations of Place, Boundaries and Identity. 8 European Journal of Urban and Regional Studies 7-28.
(99) Alan Clarke, Katherine S. Williams and Sarah Wydall An Evaluation of the Introduction of a Youth Inclusion Programme in Rural Wales (Ceredigion County Council 2008); Case and Haines, 2009, (n 78); Alan Clarke and Sarah Wydall, An evaluation of multi-agency working with children and young people who are experiencing the effects of domestic abuse, (Report submitted to the Research and Information Unit, Social Justice and Regeneration Department, Welsh Assembly Government, 2010) available at http://wales.gov.uk/topics/housingandcommunity/research/newideasfund/complete/penandaber/?lang=en; Alan Clarke, John Williams, Sarah Wydall and Rebecca Boaler An Evaluation of the Access to Justice Pilot Project, (Cardiff: Welsh Government Social Research, 2012) http://wales.gov.uk/about/aboutresearch/social/latestresearch/accesstojustice/?lang=en.
(100) Clarke, Williams and Wydall (n 99); Case and Haines, 2009, (n 78); Morgan (n 37); Gavin Dingwall, 'Resolution through Devolution?: Policing, Youth Justice and Imprisonment in Wales', [2009] 3 Crime and Misdemeanours, 5–19; Drakeford, 2009, (n 80); Drakeford, 2010, (n 69); Clarke and Wydall (n 99); Clarke, Williams, Wydall and Boaler (n 99).
(101) Wyn Jones, 2013 (n 31)
(102) Alvesalo and Virta (n 97); Green and Ward (n 97).
(103) Williams (n 17).
(104) Charles and Aull Davies (n 46); Cooper and Innes (n 46); Feilzer and Williams (n 45); Morgan, 2012, (n 92).
(105) With all the human rights problems that would entail, see Kymlicka, 2007 (n 11); Keating (n 7); and Norman (n 8).
(106) Miller (n 54).
(107) Miller (n 54) claims that the guiding ideal is essential to broad democratic acceptance of and participation in policymaking.
(108) Jones (n 5).
(109) Basia Spalek, Communities, Identities and Crime (Polity Press 2008) at p. 61.
(110) Morgan, 2012, (n 92); Maguire (n 92); Feilzer and Williams (n 45).