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