England and Wales: is it time to split the legal system?

Robin Tilbrook suggests that there would be positive consequences for the legal system if there was to be a separate Welsh legal jurisdiction






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There are now beginning to be moves afoot to split the unitary “jurisdiction” of England and Wales into two separate national jurisdictions.

In many ways such a split is not as radical a move as it might seem, bearing in mind that there are already separate jurisdictions in Scotland; in Northern Ireland; in the Isle of Man and in the Channel Isles with different Judges, procedures and often different substantive legal rules. Separate jurisdictions do not necessarily cause much practical difficulty in dealing with either civil matters or criminal matters.  What it does however mean is that there would be separate legal professions.

The jurisdictions of Canada, Australia, New Zealand and quite a few others of the old Empire/Commonwealth are similar too. There are also often less differences between their legal systems and the English/Welsh legal system than there is with the Roman Law based jurisdiction in Scotland.

It is more difficult to deal with continental European systems since they are not based on Common Law principles but rather on civil law codes deriving from Roman Law, with substantively different legal rules and often dramatically different legal procedures!

My interest in the splitting of the current unitary jurisdiction of “England and Wales” into two national ones was first raised by a discussion that I had some months ago with a senior Welsh Judge who said that he wants to see a split. Increasingly the Welsh Parliament/Senedd are legislating for Wales in a way that is different than the legislation for England.  There will therefore come a time very soon when it no longer makes sense to have a single jurisdiction.

Then, just before Christmas, the Law Society Gazette published an article looking at the implications of a separate legal jurisdiction for England and Wales.

Putting my hat on as Chairman of the English Democrats rather than as a solicitor, I would welcome separation of the jurisdictions as being an important step in the direction of independence between our two Nations. In our modern world there is no reason why our two separate Nations should be constrained into the same grossly expensive and inefficient, grandiose and extravagant UK State.

If I were a Welsh solicitor or barrister I would be optimistic about the prospects of a successful separate Welsh Jurisdiction. As long as the Welsh Government could be persuaded to reduce the currently absolutely ridiculous level of court fees, by which the British Government has been exploiting litigants in the “England and Wales” jurisdiction there would be real benefits.

The Welsh Government would then have the right to run its own Legal Aid scheme.  This could be more like the successful Scottish one and less like the unfair disaster that the UK Government has created.

It should also be pointed out that the Welsh Government ought to want to take-over the judicial appointments system, which in England and Wales is currently very politicised.

Judges here are currently appointed and promoted by the Judicial Appointments Commission.  The JAC was set up by Lord Derry Irvine when he was Tony Blair’s Lord Chancellor, which he publicly boasted would prevent the appointment or promotion of “those with reactionary views”.  Despite your views, what cannot be denied here is that this is an expressly political criterion for the appointment of Judges.  It is wholly inappropriate to getting the best lawyers appointed as Judges.  It is also contrary to providing the best service to those who use the court system.

Far from being a problem the separate jurisdictions could make the Welsh jurisdiction very attractive and might lead to many businesses having a Welsh-only legal jurisdiction clause in commercial contracts since there would be less expense and less delay and even perhaps a better selection of Welsh Judges.

From an economic point of view the current arrangements are clearly not working very well for Welsh lawyers as it appears that fees in Wales are dramatically lower than those in England.

A separate and overhauled and sensibly rationalised Welsh legal system could well be much more competitive with the English jurisdiction and provide a boost not only to Welsh lawyers but also to the Welsh economy.

As the Gazette article quotes from Barrister David Hughes,  “The buildings are all here (in Wales), the judges are all here. More is spent per head in England…  At the moment Wales is not gaining [in terms of] access to justice. SMEs in Wales are subsidising multi-million-pound litigation between oligarchs in London. That does nothing for the community in Wales – the fees are not coming back.”

As Hughes suggested, a legally independent Wales would be able to do ‘imaginative’ things to enhance access, such as introduce a contingency legal aid fund. ‘Wales would not be a particularly small common law jurisdiction. If it were a US state, 20 [states] would be smaller,’ states in the article.

As both an English Solicitor and also as the Chairman of the English Democrats, I welcome these moves towards a separate legal jurisdiction for Wales.

Robin Tilbrook is an English Solicitor and the Chairman of the English Democrats