As part of the IWA’s innovative new project to debate policy in a new way David Melding looks at the question of a separate legal jurisdiction for Wales.
The administration of justice, although not currently a devolved responsibility, has been the subject of significant developments in Wales since 1999 and these developments have contributed to the emergence of a modern Welsh legal identity.
One of the implications of the new devolution settlement following the March 2011 referendum, is that we have two legislatures, each with extensive law-making powers but within the framework of a single England-and-Wales jurisdiction.
Following the referendum and the continuing development of a body of Welsh law, some commentators have argued that it will become increasingly difficult to make the single England-and-Wales legal jurisdiction work. That said, there are those who remain sceptical of the need for a separate Welsh jurisdiction and others who remain opposed to it.
It was this continuing debate that prompted us to look into this subject in more detail between March and December 2012 although we did not see it as our role to come forward with specific recommendations for and against the establishment of such a jurisdiction.
So, turning to the main outcomes of our inquiry.
It is clear that the guiding principle behind any consideration of a separate jurisdiction should be to bring justice closer to the people of Wales and thus enable better access to justice for Welsh citizens.
In the committee’s view, it is fundamentally important that any future changes should be undertaken with the Welsh public in mind and should not be seen simply as a matter of convenience to the legal profession.
We believe that whether or not a single jurisdiction should be established is a political decision, with the precise details of how it should be established a matter for future political debate and negotiation. In line with our guiding principle, there is a clear role for the Welsh and UK Governments to actively engage the public in this debate.
In the course of our inquiry, it became evident that a separate Welsh jurisdiction is constitutionally viable.
As we indicate in our report, small jurisdictions work perfectly well in Northern Ireland, the Channel Islands and the Isle of Man and as a consequence, we suggested that studying how they operate could help in preparing for the establishment of a Welsh jurisdiction at some point in the future.
As part of our work, we sought evidence to identify what would constitute a separate jurisdiction. Although no single set of criteria was agreed by all respondents and witnesses, many agreed that any future jurisdiction should be based on the following features:
– first, a defined territorial extent – for our purposes, Wales;
– secondly, a body of law, which would include laws made by the National Assembly as well as inherited laws at the time any jurisdiction is introduced; and
– thirdly, a range of distinct legal institutions and a court system.
While we believe that a separate jurisdiction is constitutionally viable, it is also true that the current unified England-and-Wales jurisdiction has served us well and is proving itself adaptable to the needs of devolution.
As a distinctive body of Welsh law continues to emerge and develop over the coming years, the divergence between laws that apply in Wales and those that apply in England will naturally increase, particularly as different legislative solutions on similar subjects are developed and enacted. Equally and just as important, divergence between Welsh and English laws does not rely solely on legislation made by the National Assembly, as the UK Parliament increasingly makes laws that apply to England only and that are different from those that apply in Wales.
This increasing divergence will place more practical and administrative challenges on the current unified England-and-Wales jurisdiction model. Nevertheless, we believe that these practical difficulties can be dealt with in the current structure.
As a consequence, we made 5 recommendations intended to secure practical improvements to the current unified England and Wales jurisdiction, to ensure that it adapts to, and keeps pace with, the changing constitutional and legislative realities. Such changes would also develop the existing legal infrastructure in Wales and have the advantage of making the move to a separate jurisdiction easier, if such a decision were made in the future.
First, as a body of Welsh law evolves over time, we recommended that additional legal training be put in place reflecting the legal traditions and emerging legal identity of Wales.
Secondly, we recommended that the Civil Procedure Rules be amended to ensure that public law cases that deal primarily with Welsh issues are generally commenced or transferred to the administrative court in Wales.
Thirdly, we recommended that a body be entrusted with reviewing and assisting with the consolidation of Welsh law. Such a body could form part of the existing Law Commission for England and Wales or be a newly established body.
Fourthly, we recommended that a presumption be established in favour of commencing and hearing in Welsh courts all cases relating to laws made bilingually in the English and Welsh languages.
Finally, we felt there should be a senior judge with experience of Welsh devolution and Welsh law appointed to the Supreme Court.
Looking to the future, we accept that the case for a separate Welsh jurisdiction will be strengthened as divergence between laws in Wales and England increases, and if aspects of the criminal justice system are devolved to Wales. Indeed, we concluded that the creation of a separate legal jurisdiction would make most sense with the accompanying devolution of aspects of the criminal justice system. This reflects the views of many witnesses that the creation of a separate jurisdiction without the devolution of criminal justice would be inelegant, cumbersome and may give rise to confusion.
Your comments on this piece will be fed into a parallel discussion taking part between 30 experts on a private platform. Over the course of the next five weeks further pieces will be appearing
In his pontification on this subject, David Melding begins by raising the matter on the grounds that ” Some
commentators argue it is increasingly difficult to make single England legal jurisdiction work”.Who ever the ‘Commentators are” he does not say! He goes on to state that ” It is true that current England Wales jurisdiction has served us well and is proving adaptable to the needs of devolution”
Debate closed you might think.No such thing. We have in David Melding a proportional elected Welsh Assembly member who appears not to realize that further devolution along these lines would involve employing more civil servants and possibly calls for more A.M.s with all the extra costs!
Regardless he goes on to put forward four proposals to lead us further down the road to devolution in this matter.
Also in his article Mr Melding states that the guiding principal behind any consideration of separate Jurisdiction should be to involve the Welsh public in this decision.
May I as a conservative party member under whose flag you are elected to the Welsh assembly, ask when you have sought the views of your fellow party members, for moving down the road of devolution further on legal matters? I can’t recall that you have ever called for a debate on the matter at Welsh Conservative Party Political Forum Meetings,
I may be wrong , if so please let me know when the matter was debated and I will apologize!.
I looked at the background information underpinning this extended debate. Whilst I understand the reasoning behind the expert group, I am less comfortable with the secrecy surrounding the makeup of the group, to wit :
“This debate will take place on a private online forum due to its sensitive nature and to allow serving police officers to take part.”
and encouraging police officers by virtue of anonymity to engage in active politics, to wit:
“… there are certain additional legal restrictions on police officers such as the illegality of taking industrial action and the ban on taking part in active politics.”
It might be argued that the forthcoming debate is not active politics, but in the scheme of Welsh politics the debate will become political very quickly.
I would encourage IWA to modify the format to make participation as transparent as possible by publishing the expert panel. The people of Wales deserve good democracy. Closed doors is not good democracy.
On a positive note, this type of debate could begin to address our democratic deficit in Wales. The people need to trust politics. The debate might find its way to our schools and colleges to extend discussion to the very people who will benefit from the administration of justice in Wales.
Hi John,
thanks for your comment. I’m the policy analyst running the project. With regards to the privacy of the project, it’s something we thought long and hard about.
We decided to keep this as the pilot private firstly for the nature of the policy subject. We really want practitioners to be involved and keeping the site private seemed fundamental to that.
Additionally as we’re very much in the pilot stage, we felt it was important from a technological perspective to trial this privately to iron out any problems.
In the future we very much hope to make the next test of this format to be public, with the addition of a more publicly discussed policy area. A key aim for us is to use this method as a way to involve the public in policy, and we hope that in future projects we can do just this.
If you have any questions for me, or want to discuss this further, just send me an email at [email protected]
thanks.
I welcome David Melding’s realistic analysis, the need to bring justice “closer to the people” and the five recommendations outlined.
I have some reservations regarding his comment, “that the current unified England-and-Wales jurisdiction has served us well…”. We should bear in mind that the jurisdiction was an imposition of an English Parliament via the Laws in Wales Acts 1535-42. Those statutes made English the only language of the courts in Wales, at a time, and for centuries, where the predominant language was Welsh. Indeed, it wasn’t until as late as 1942 that even small steps were taken to remedy that situation.
The unified jurisdiction has played its part in the destruction of Welsh in many parts of Wales. Even today, it ill-serves Welsh-speaking people, as the language is not treated equally in the courts, despite the Act of 1942 or subsequent measures post the 1993 Welsh Language Act. Special procedures have to be followed before hearings can take place in Welsh. Unless and until there is a separate jurisdiction, Welsh-speakers will continue to be at a disadvantage in court hearings in Wales. It remains essentially an English jurisdiction which hasn’t proved very flexible as far as Wales is concerned.
Peter Hugh Charles Davies
Only the Congress of the People’s Republic of China has more politicians than Westminster. Fewer than half the latter’s approximately 1400 members are elected. It employs a system of voting which denies any element of proportionality, resulting in endless governments elected by a minority of those voting. It is arguable that the ‘list’ members of the Assembly better reflect the democratic will of their electors than those elected by FPTP. It is also a principle in the UK, that once elected (by whatever system employed) members, be they AMs, MSPs or MPs represent ALL their constituents, and not simply those of the political party to which they belong. The Assembly needs more members if it is to properly and efficiently fulfil its role of scrutinising government legislation. It is in all our interests that it does it well.
Reading this I am dismayed: a less worthwhile idea than a separate jurisdiction for Wales is difficult for this practitioner to imagine. David Melding points to no obvious injustice in the current system and, surely ,it could not have been lost on those would pondered the matter, the critical constitutional safeguards(the essence of the rule of law) and the enormous commercial convenience that flows from being part of a widely admired system. This is not a puff!The legal systems of Canada, Australia, New Zealand and Hong Kong still closely resemble the system current in England and Wales. All respected jurisdictions. It is also the case that Thailand and Indonesia are in the process of revising their own systems, derived from the French and Dutch respectively, along English lines. China’s commercial laws use English templates. I Know of what I speak.: I was a civil servant in the Hong Kong government for nearly twelve years and for four of them the senior legal advisor in the GATT/WTO negotiations in Geneva, when I was in daily contact with diplomats and lawyers from these and other jurisdictions.
I admit that I have not been in practice in Wales for more than thirty years, but I would be surprised to see a significant body of Welsh law had developed beyond highly specific statutory provisions, which have no place in the case Mr Melding is trying to make. What is meant by bringing the law closer to the Welsh people? Better access to legal advice and assistance? That is to be desired, but it has no bearing on the question of the benefits presumed in an unique jurisdiction for Wales. The current commonality is not a mere convenience to practitioners, but a great good that should not be lightly tampered with.
David Fitzpatrick argues against his own case when he says “The legal systems of Canada, Australia, New Zealand and Hong Kong still closely resemble the system current in England and Wales. All respected jurisdictions.”
This is undoubtedly true, but they all started essentially with the same system as England and Wales, and when they started to create their own laws a separate jurisdiction was the inevitable result. This is what is happening in Wales now, and as he says these previous examples show two things:
1. That the jurisdictions can retain much similarity with the original system and still be a separate jurisdiction.
2. That they can make a success of it.
Nobody is arguing that we should have a completely different system of law, such as Scotland has (which is a hybrid common/civil law system). But it is inevitable that we will end up with something like Northern Ireland has, an evolution of the common law system of England and Wales. It makes sense to prepare for this eventuality.
Why has this become bogged down in detail? This is english/unionist procrastination at its worst. We in Wales voted for this 18 months ago. We should have had it 12 months ago. It throws into doubt the ability of the english govt to execute the unambiguously stated wishes of the people. English unionism has a history of delay. Ireland voted for Home Rule for 40 years, but it took an armed uprising to move the London administration. I thought even Wminster had learned from this stupidity. Procratination is simply an invitation to violence.