Devolution of Policing and justice: Constitutional Architecture and the Jagged Edge
Introduction
The reservation of policing and justice to Westminster remains the most acute structural anomaly in the Welsh devolution settlement. Although the reserved powers model introduced by the Wales Act 2017 was intended to clarify competence, it entrenched a constitutional architecture in which devolved social policy must operate alongside a justice system designed for a single England and Wales jurisdiction. This article argues that this “jagged edge” is not a political inconvenience but a constitutional fault line, as the current model cannot sustainably accommodate justice divergence without legislative realignment. Drawing on the Thomas Commission, recent UK wide policing reforms and the Supreme Court’s purposive approach to devolution, the article contends that the coherence of Welsh governance now requires a principled transfer of policing and justice functions. The question is no longer whether devolution is desirable, but whether the existing constitutional framework can withstand the pressures placed upon it.
The Contemporary Momentum Behind Devolved Policing
The debate around devolved policing and justice is rooted in the post-1999 settlement and its later recasting under the reserved powers model. As amended by the Wales Act 2017, the Government of Wales Act 2006 (GoWA 2006) empowers the Senedd to legislate on any matter not listed in Schedule 7A, subject to the general competence tests in s.108A and the restrictions in Schedule 7B which elucidate that crime, public order and policing are expressly reserved, keeping responsibility at Westminster unless Parliament changes the law. Although s.92B GoWA 2006 recognises “Welsh law,” that recognition does not alter the single England and Wales legal jurisdiction or the reservation of justice; rather, it confirms that Welsh law forms part of the law of England and Wales. This cCompared with Scotland and Northern Ireland—both of which have no PCCs and instead operate national police forces under governance arrangements wholly distinct from those in England and Wales—this divergence offers an important comparative reference point when considering potential Welsh reform.
Similarly, Tthe Courts Act 2003 similarly reflects this shared institutional framework, with court administration organised on an England and Wales basis. Within this architecture, the “jagged edge” is visible in the daily interaction between devolved services (health, housing, education) and nondevolved justice bodies, sustaining calls for reform [2]. The Commission on Justice in Wales (2019) concluded that that “the people of Wales are being let down by the [justice] system in its current state” and recommended full devolution of justice and the creation of a Welsh legal jurisdiction, alongside a programme; data disaggregation, governance reform and a considered case for a Welsh jurisdiction designed to ease these structural tensions [3].
The Thomas Commission: Scope and Implications
The 2019 Thomas Commission proposed legislative and executive devolution of justice to the Senedd and the establishment of a distinct Welsh legal jurisdiction. Full implementation would transfer responsibility for policing, prisons and the courts to Welsh institutions. These areas are currently reserved under Schedule 7A GoWA 2006, including para 175 (prisons and offender management), meaning implementation would require primary UK legislation or treaty‑style intergovernmental mechanisms to adjust competence. The report is the most comprehensive review of Welsh justice in two centuries [4].
Two Supreme Court devolution cases illustrate the purposive approach to competence. In Local Government Byelaws (Wales) Bill, the Court unanimously upheld the Senedd’s competence, emphasising the s.108/Schedule 7 scheme, now s.108A/Schedules 7A-7B and the legitimacy of provisions “incidental to, or consequential on” devolved purposes then Schedule 7, Part 3 [5]. Similarly, in the Agricultural Sector (Wales) Bill reference, the Court held that a Welsh statute setting agricultural wage terms “related to” agriculture, a devolved subject even though it touched employment, applying a flexible “purpose and effect” test under s.108(7), now reflected in s.108A [6]. These cases do not devolve policing or justice, but they demonstrate the interpretive posture the Court adopts when assessing Senedd Acts against reserved lists and competence tests.
Welsh Government Policy Since 2019
Since the Commission’s report, the Welsh Government has consistently argued for the full devolution of justice. It featured in the Co-operation Agreement with Plaid Cymru in 2021 and the Programme for Government 2021-26. The Welsh Government set out its response to the Thomas Commission’s report in ‘Delivering Justice for Wales’ (2022). The Welsh Government’s Delivering Justice for Wales (2022) articulates a phased pathway, and its 2024 Progress Report reiterates the central diagnosis that successful partnerships operate within a disjointed constitutional system, which limits improvement until justice functions align with devolved services. In August 2025, Ministers confirmed exploratory work with the UK Government on youth justice (strategic oversight, governance, funding) and a Wales‑specific Memorandum of Understanding (MoU) on probation, both currently reserved under Schedule 7A, as near‑term candidates for realignment [7].
This “early‑candidates” approach broadly tracks the Independent Commission on the Constitutional Future of Wales (2024), which concluded there is “no reason of principle” against devolving justice and policing and recommended sequencing with policing, probation and youth justice as early steps, with appropriate funding and shared‑governance arrangements. In its progress report (2024) on the justice work programme, the Welsh Government said: “Devolution of justice is an essential part of the necessary reforms that need to be implemented if we are to deliver a modern, progressive and effective legal and justice system for, and accountable to, the people of Wales” [8].
The constitutional debate is unfolding amid UK‑level policing reform. The Police Reform and Social Responsibility Act 2011 (PRSRA 2011) created Police and Crime Commissioners (PCCs) as per ss.1-2, Part 1, establishing a local democratic oversight model across England and Wales [9]. In November 2025, the UK Government announced PCCs would be abolished at the end of the current terms in 2028, with oversight moving to mayors or, where absent, to police and crime boards of local leaders, with bespoke arrangements for Wales [10]. Concurrently, the Strategic Policing Requirement (SPR) under s.37A Police Act 1996, through which the Home Secretary specifies national threats and capabilities, was updated in February 2023 to include Violence Against Women, Domestic Abuse and Sexual Violence (VAWDASV) as a national threat, reinforcing Whitehall’s direction‑setting role for forces in England and Wales [11]. In early 2026, media and policy reporting indicated the Government’s policing white paper would propose reducing forces from 43 to a significantly smaller number by the next decade, with Reports that the Home Secretary, Shabana Mahmood, is preparing to impose sweeping reforms across Wales and England, potentially merging forces into large regional “mega forces,” once again elucidates how major decisions affecting Welsh communities are being taken without Welsh democratic consent [12].
Political Argument for Welsh Control
Plaid Cymru Westminster Leader Liz Saville Roberts MP has said that the UK Government’s planned overhaul of policing, including proposals that could reduce the number of police forces in Wales, makes this a critical moment to devolve policing and justice powers in full to Wales major decisions affecting Welsh communities are being taken without Welsh democratic consent [13]. Liz Saville Roberts MP goes on to state that: “The proposed reorganisation of policing in Wales is being driven from Westminster, with little regard for Wales’ geography, communities, language or social needs. If policing structures in Wales are to change, those decisions must be made in Wales, by institutions accountable to the people of Wales” [14]. These arguments endorse further justice devolution and reflect the constitutional fact that policing/criminal justice are reserved in Schedule 7A, so reform depends on Westminster legislation; attempts to remove the policing reservation, for example, a 2016 Commons amendment, failed [15].
Despite the Welsh Government’s position, progress on devolution requires the support of the UK Government. It is the UK Government that would proposes the necessary legislation to enable the devolution of any powers. That proposition follows directly from Schedule 7A and s.108A GoWA 2006 as only Parliament can alter the reserved list or confer the necessary competence. After the 2024 UK General Election, the UK Government signalled consideration (not commitment) of youth justice and a strategic review of probation governance, a stance echoed in written answers and the Labour 2024 manifesto [16]. In August 2025, the Welsh Government reported agreement to explore realignment of youth justice responsibilities and a probation MoU with HMPPS, mirroring but not replicating, co‑commissioning models used elsewhere. That said, in July 2025 the Senedd’s Equality and Social Justice Committee warned, following evidence from Lord Timpson, that the UK Government might “row back” on earlier signals regarding youth justice and probation devolution, illustrating the political contingency of progress absent statute [17].
The persistence of the “jagged edge” in policing also follows from the UK accountability and direction framework. Under s.37A Police Act 1996, the Home Secretary’s SPR sets the national threats and the capabilities required; PCCs (or their successors) and Chief Constables (CCs) must have regard to it. This inherently UK‑wide direction sits alongside devolved Welsh duties and strategies such as public health and VAWDASV, creating areas where soft coordination must bridge formal competence gaps until a legislative realignment occurs.
Progress to date has been phased and exploratory, consistent with constitutional constraints by (i) a growing body of commission evidence (Thomas Commission 2019; Independent Commission 2024), (ii) Welsh Government programmes (Delivering Justice for Wales 2022; 2024 Progress Report) and (iii) intergovernmental work on youth justice and probation, all against a live UK agenda that includes abolishing PCCs in 2028 and considering force restructuring [18]. The statutory pathway is clear as any full transfer of policing or justice would require amending GoWA 2006 reserved matters as per Schedule 7A and/or enacting new framework legislation; in the interim, MoUs and concordats can partially align delivery but cannot substitute for legislative competence.
Current Policing Governance
The governance of policing in the UK reflects a complex constitutional architecture in which operational diversity sits atop a formally centralised legal foundation. The UK’s 48 police forces; including the 43 territorial forces for England and Wales, alongside Police Scotland, the Police Service of Northern Ireland and the specialist forces (BTP, CNC and MDP), illustrate a landscape shaped by historical jurisdictional boundaries rather than devolved constitutional design. Within this framework, Wales occupies a structurally constrained position, its four territorial forces operate entirely within the England and Wales jurisdiction, notwithstanding the substantial divergence of devolved social policy. Under the reserved powers model introduced by the Wales Act 2017, the substitution of s.108A and Schedules 7A-7B into the GoWA 2006 confirms that crime, public order and policing remain reserved matters, leaving legislative competence exclusively with the UK Parliament. The result is a governance settlement in which Welsh institutions hold responsibility for many of the sociolegal drivers of crime yet lack constitutional authority over the policing bodies interacting most directly with those devolved frameworks [21].
The PRSRA 2011 further embeds this centralising dynamic through a statutory model of democratised oversight that remains structurally indifferent to Welsh constitutional distinctiveness. The creation of PCCs and the accompanying system of Police and Crime Panels under ss.28-33, establishes a governance arrangement premised on local electoral legitimacy but still nested within the single England and Wales policing jurisdiction. London’s distinct arrangement through ss.3-4 (MOPAC) reinforces this pattern of asymmetrical modification thus while institutional forms can vary, the constitutional locus of authority does not. The dual corporation sole model, PCC/mayor as the local policing body and the CCs retaining operational “direction and control” is repeatedly scrutinised because it seeks to reconcile strategic accountability with operational independence. Yet, for Wales, the deeper issue is that this statutory architecture presumes a unitary legal space, limiting any meaningful constitutional adaptation to Welsh policy priorities.
Subsequent reforms continue to demonstrate how governance of policing can be recalibrated within England yet remain constitutionally immovable for Wales. Transfers of PCC functions to mayors under the Local Democracy, Economic Development and Construction Act 2009 and the Policing and Crime Act 2017, along with the creation of Police, Fire and Crime Commissioners (PFCCs) under ss.4A-4L of the Fire and Rescue Services Act 2004 (inserted by the 2017 Act), illustrate a statutory flexibility that operates only within the boundaries of the England and Wales settlement [22] [23]. These reforms, along with the tripartite accountability structure of the Home Secretary (national direction), PCCs/mayors (local oversight) CCs (operational command), consolidates a governance framework in which Wales is simultaneously deeply affected yet constitutionally peripheral. The Strategic Policing Requirement (SPR) under s.37A Police Act 1996, which PCCs and CCs must “have regard” to, exemplifies the continuing capacity of Westminster to impose national priorities across Wales [24]. This well-established model exposes the central tension at the heart of the Welsh devolution settlement as core policing powers remain structurally insulated from Welsh democratic institutions, even as devolved responsibilities, and the need for continuous expansion of for policy coherence continue to expand.
Conclusion
A sustainable Welsh devolution settlement cannot rest on a justice system structurally external to the institutions responsible for the social policy areas it intersects. The evidence of successive commissions, the limits of intergovernmental workarounds and the accelerating pace of UK‑wide policing reform together show that the reserved‑powers model is no longer capable of managing the constitutional and operational divergence now embedded in Welsh governance. The “jagged edge” is therefore not a temporary friction but a systemic flaw as only legislative realignment, beginning with youth justice, probation and policing, can reconcile accountability, coherence and democratic legitimacy within the post‑2017 settlement. Without such reform, Wales remains governed by a justice architecture increasingly misaligned with its devolved polity.
References
[1] HM Government (2016) Wales Bill: Explanatory Notes (Revised). Available at: https://assets.publishing.service.gov.uk/media/5a801a15ed915d74e33f8745/Wales_Bill_Explanatory_Notes_-revised-_English.pdf
[2] vLex: Courts Act 2003 (2003 c. 39). Available at: https://vlex.co.uk/vid/courts-act-2003-808487409
[3] Welsh Government (2019) Justice Commission for Wales: Full Report. Available at: https://www.gov.wales/sites/default/files/publications/2019-10/Justice%20Commission%20ENG%20DIGITAL_2.pdf
[4] UK Parliament (2026) Government of Wales Act 2006: Schedule 7A (as amended). Latest revised version, up to date as of 12 February 2026. Available at: https://www.legislation.gov.uk/ukpga/2006/32/schedule/7A
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[7] Welsh Government (2022) Delivering Justice for Wales. First published 24 May 2022; last updated 10 April 2024. Available at: https://www.gov.wales/delivering-justice-for-wales
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[9] UK Parliament (2011) Police Reform and Social Responsibility Act 2011. Available at: https://www.legislation.gov.uk/ukpga/2011/13/contents
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[12] UK Parliament (2025) Written Statement: HCWS1058 – Police Governance Reform. 13 November 2025. Available at: https://questions-statements.parliament.uk/written-statements/detail/2025-11-13/HCWS1058
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[16] Labour Party (2024) Labour Party Manifesto 2024. Available at: https://labour.org.uk/wp-content/uploads/2024/06/Labour-Party-manifesto-2024.pdf
[17] Senedd (2024) UK Government could row back on the devolution of youth justice and probation. Available at: https://senedd.wales/senedd-now/news/uk-government-could-row-back-on-the-devolution-of-youth-justice-and-probation/
[18] UKSC Blog (2012) New Judgment: Local Government (Wales) Bill 2012 [2012] UKSC 53. Available at: https://ukscblog.com/new-judgment- Byelaws local-government-byelaws-wales-bill-2012-2012-uksc-53/
[19] Welsh Government (2025) Written Statement: Preparing for the Devolution of Justice. Available at: https://www.gov.wales/written-statement-preparing-devolution-justice-0
[20] UK Parliament (2006) Government of Wales Act 2006: Schedule 7. Available at: https://www.legislation.gov.uk/ukpga/2006/32/schedule/7
[21] UK Parliament (2017) Policing and Crime Act 2017: Explanatory Notes – Part 3. Available at: https://www.legislation.gov.uk/ukpga/2017/3/notes/division/3/index.htm
[22] Local Government Pension Scheme Library (2022) The Police, Fire and Crime Commissioner for Cumbria (Fire and Rescue Authority) Order 2022 – Explanatory Memorandum. Available at: https://www.lgpslibrary.org/assets/si/ew/SI2022-1230EM.pdf
[23] Home Office (2023) Independent assessment of the proposal for a PCC‑style FRA for Cumbria. Available at: https://www.gov.uk/government/publications/cumbria-fire-governance-proposal-independent-assessment/independent-assessment-of-the-proposal-for-a-pcc-style-fra-for-cumbria
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Image Credits
Jonny Gios on Unsplash <https://unsplash.com/photos/a-large-building-with-a-sky-in-the-background-yw-r4kSXJPA>
