Legal personality next stage for Welsh devolution

Alan Trench considers the implications of establishing a separate jurisdiction for Wales

The Welsh Government’s consultation on the idea of establishing a separate Welsh legal jurisdiction which closes today (details here) is, in essence, a set of exam questions. Examinees, sorry respondents, are required to ‘give reasons’ for their answers to a series of extremely open-ended questions.

One important point about legal jurisdictions is that, in the common-law world, they invariably coincide with the existence of a legislature. Thus, in Canada, even a tiny province like Prince Edward Island has its own legal jurisdiction – as well as a provincial legislature.

In federal systems, there will also be a legal jurisdiction attached to the federal order or level. Consequently Prince Edward Island is both a jurisdiction of its own, in relation to exclusively provincial matters, and part of the jurisdiction of Canada in relation to federal ones. The civil-law world works differently, and can more easily accommodate multiple legislatures passing laws for particular territories within a single legal jurisdiction. Thus, there is a single German or Swiss jurisdiction, despite the existence of federal and Land or cantonal parliaments that can both pass laws.

The UK has taken a somewhat different approach. We have no ‘UK-wide’ jurisdiction, overlapping geographically with those of the devolved legislatures but operating in relation to separate powers. This is what one would expect if UK had followed a federal model. Instead, there are three jurisdictions: that of England and Wales, and those of Scotland and Northern Ireland.

In essence, the Northern Ireland jurisdiction follows the same common law rules as England and Wales (though Northern Ireland has different land law).  Scots law is, of course, very different to that of England and Wales – and is governed by two legislatures, at Westminster and Holyrood.  While the task of looking after the body of Scots law overall falls to the Scottish Parliament, some important aspects of Scots law – the law relating to banking, for example – is beyond Holyrood’s purview as it relates to reserved matters.

The debate about the idea of establishing a Welsh legal jurisdiction comes against this background. The existence of a devolved legislature, and a distinct body of law, cause increasing strains within the body of the law of England and Wales. There is little new in this – the issue was raised with me in one of the very first interviews I did with government lawyers, back in 2002.  But with the National Assembly having acquired primary legislative powers, the pressures for that have increased – and will increase yet further as the Assembly becomes more active in making laws.

The Welsh Government’s consultation may well be an attempt to help shape an important issue for the second part of the work of the Silk Commission, due to start in the autumn of 2012, about the devolution of further functions. The issue is also the subject of an ongoing inquiry by the Assembly’s Constitutional and Legislative Affairs CommitteeCheryl Gillan has, however, already signalled her opposition to it, talking of its ‘glaringly obvious’ risks. (While there are various risks, I have to say that they are not glaringly obvious to me.)

Gillan is wrong in at least one respect – that creating a separate jurisdiction would necessarily involve the devolution of criminal law. It would be quite possible to establish a Welsh jurisdiction without devolving any further substantive functions, including particularly criminal law. A ‘jurisdiction lite’ would entail creating Wales as a separate legal jurisdiction, which would have two key features (as well as a defined territory within which to apply): a distinct body of law, and a distinct set of courts.

The fact that the law and the courts would be ‘distinct’ does not necessarily mean that they would be separate from, or different to, those in England. The justices of what is now the High Court of England and Wales could be authorised to sit as members of the High Courts of England, and of Wales, and likewise for the Court of Appeal. Westminster would continue, as at present, to be the sole legislature for some (non-devolved) matters, with other devolved ones being determined by the National Assembly. Even control and accountability of the new Welsh jurisdiction could remain a matter for the UK Government and Parliament. All that would necessarily change (other than a pretty small additional administrative overhead) would be that the laws of England and of Wales would be different as a matter of form as well as substance – the change in substance is already happening.

This is not necessarily to recommend such a stripped-down, bare-bones approach to a legal jurisdiction. Another approach is to treat the establishment of a legal jurisdiction, and the devolution of functions relating to the legal system, as part of the next stage in Welsh devolution. The point, however, is that devolving such additional functions is part of a choice about how Welsh devolution develops. The direct and necessary implications of a separate legal jurisdiction are very limited.

However, establishing a separate jurisdiction then opens the door to another possible change.  That is moving to the ‘reserved powers’ model of devolution that Scotland and (in a modified form) Northern Ireland have, rather than the ‘defined powers’ model Wales presently has.  It would be very hard, if not impossible, to create the ‘reserved powers’ model without having a separate Welsh legal jurisdiction as well.  There would be such serious questions about the nature and extent of devolved law-making powers without one that the Assembly might find it very hard to do anything at all.

Whether to move to the ‘reserved powers’ model is a major question, and it lies at the centre of the talk I gave to a recent symposium in Cardiff organised by Public Law Wales and the Law Society’s Wales Office on ‘The Separate Welsh Jurisdiction’. I argued that there are some serious problems with the present legislative arrangements. Some of these arise from the way the Sewel convention works, and how seriously it is taken in Whitehall. Others arise from the way devolved legislative competence works at the margin, and the need under the present arrangement for the legislator to show that devolved legislation ‘relates to’ a devolved matter – the converse of the test for Scotland or Northern Ireland, where the issue is whether the legislation ‘relates to’ a reserved (or excepted) matter.

A further source of difficulty is the way that functions of UK Ministers are protected, which again contrasts with the position for Scotland – though the history of Wales’s administrative entanglement with England means there are many more such matters That means that a good deal of devolved legislation is likely to require the consent of the Secretary of State. The legislation regarding an ‘opt-out’ system of organ donation will be an early test of how that works. A ‘reserved powers’ model would help somewhat with some of these problems, but it would not be a panacea. I suspect quite a bit more work will need to be done to come to a stable and workable form of Welsh devolution.

Alan Trench is a non-practicing solicitor and an academic, associated with the University of Edinburgh and the Constitution Unit at University College London. This article first appeared on his blog Devolution Matters. The slides from his talk at the Public Law Wales symposium can be found here.

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