A legal jurisdiction for Wales?

The debate about whether there should be a legal jurisdiction for Wales, so that Wales would no longer share a system of law and courts with England, has rumbled on for some time.  Plaid Cymru issued its own paper on the subject in 2010.  In 2012, it was the subject of a consultation by the Welsh Government as well as a major inquiry by the National Assembly’s Constitutional and Legislative Affairs Committee.  The proposition received a conditional endorsement from the Assembly Committee, which noted the legal differentiation between England and Wales that was already underway and the implications of that for a shared England-and-Wales jurisdiction.  However, the Welsh Government’s enthusiasm for the idea had disappeared by time it submitted evidence to the Part 2 inquiry of the Silk Commission, when it said, ‘While it would not be appropriate to establish a separate legal jurisdiction for Wales now, such a development is very likely in the longer term and action can be taken which would help to ensure a smoother transition to such a jurisdiction in due course.’  More recently, support for a Welsh legal jurisdiction has come from Justice for Wales and from Plaid Cymru.  The relationship of a legal jurisdiction to a ‘reserved powers’ model (an issue that has concerned me since 2005, and previously discussed HERE and HERE) means it is now highly topical.

Part of the reason for the limited support from the Welsh Government is the complexity of the issue, the costs and concerns that any further devolved functions would not be fully funded, but also the fact that the issue became something of a Christmas tree.   Many of those giving evidence hung onto a devolved jurisdiction their own wish-list of functions they thought should be devolved – whether that be the criminal law, policing, offender management, the court system or the civil law.  There may be strong arguments for devolving each of these functions – Justice for Wales base their case on the advantages of devolving a number of functions relating to the operation of the courts and the legal system, and the advantages of devolution.  This approach may be good advocacy, but it doesn’t always reflect clear thinking about the problem.  There are a number of distinct questions to be addressed:

• Should Wales constitute a distinct legal jurisdiction?  If so, to achieve what goal?

• How separate should a distinct Welsh jurisdiction be? – what institutions, functions or arrangements presently operating on an England-and-Wales basis need to operate separately if Wales were to become a distinct legal jurisdiction?

• How devolved should a distinct Welsh jurisdiction be?  What functions should be devolved and under the control of the National Assembly and Welsh Government?

To answer the first, the case that Wales should constitute a distinct legal jurisdiction as part of the move to a ‘reserved powers’ model is a strong one.  Writing the recent WGC/Constitution Unit report on this, it was clear that a number of important issues need to be regulated to ensure that the National Assembly can legislate effectively for Wales, but also does not affect England when it does so.  A Welsh legal jurisdiction is not the only way of doing so, and the report sets out some of the measures needed if there were not one – notably ways of determining which body of law applies in any particular court case.  But a Welsh jurisdiction becomes the easiest, clearest and most direct way of addressing those problems.  Given the need we identify to devolve powers in relation to both the civil law generally, and the creation of criminal offences, there is a further reason for a legal jurisdiction: to help the public understand the nature of the powers of the National Assembly and the fact that ‘things will be different’ in Wales, as well as manage these matters from a more technically legal point of view.  These are essentially technocratic arguments, but they are powerful ones regardless of other considerations.

The second question above has attracted many answers – the ‘Christmas tree’ problem noted in connection with the Welsh Government’s consultation.  Plaid Cymru directly addressed this by setting out two models for a Welsh jurisdiction, a ‘minimum’ and a ‘maximum’ model.  Their ‘minimum’ model includes a separate prosecution service, administration of the courts and of justice, appointments of judges and magistrates, and a distinct legal aid system.  (They also propose that these functions are devolved, answering the third question.)

However, whether establishment of a Welsh legal jurisdiction needs to involve establishing any separate institutions that replicate the current England-and-Wales ones is open to debate.  At present, Wales has all the elements of a legal jurisdiction: a territory, an identifiable body of law applicable within that territory (with not one but two legislatures to pass laws), and courts to administer that body of law along with legal professions and the related institutions needed to give effect to court proceedings.  The problems that are most pressing arise from the fact that (except for territory) these elements are also those of England.  A simple way of addressing the problem is simply to create two units out of the one, while allowing the two to continue to share their resources and operations.  Thus one could provide that the courts of the single jurisdiction of England and Wales – the magistrates’, Crown and county courts, High Court and Court of Appeal – will become, instead, the courts of two jurisdictions, of England and of Wales.  All those presently qualified to sit in those courts would continue to do so, but when they were adjudicating cases relating to England they would sit as the courts of England, and when adjudicating ones relating to Wales they would sit as the courts of Wales.  The existing levels of decentralisation of the courts would mean that in many cases Welsh courts would sit in Wales, with judges from Wales, and there might be good reasons to ensure that was so for the lower courts sitting at first instance (magistrates’, Crown and county courts).  At the same time, a shared relationship with the courts and legal system of England would ensure Wales had ready access to the specialist expertise and resources when that was needed, whether for urgent business or highly technical areas of law like Chancery matters or intellectual property.  By the same token, solicitors and barristers currently admitted in England-and-Wales would be admitted in both England and Wales.  As a result, Wales would gain a legal boundary that best addresses the problems of a reserved powers model, but without losing advantages of the shared jurisdiction or adding to the costs of running the courts and legal system.

This would mean a change in the status of the law; the laws of Wales would not in general automatically be the same as those of England.  The substantive change would be less great and immediate, since they would only be different insofar as they were devolved.  Devolved law-making powers mean this is already happening, as much because of changes made for England at Westminster as what happens in Cardiff Bay.  The move to a reserved powers model will necessarily increase the scope of substantive legal change, as to work effectively it needs to include devolving powers in relation to the civil law and the creation of criminal offences.  Even to the extent that the National Assembly would have power over the law of contract (for example), it would have some good reasons not to use this in far-reaching ways, given the open and porous border with England – the more so if areas of law like consumer protection remain reserved (as it is for Scotland).

What this offers is a way of establishing a legal jurisdiction for Wales that is distinct, without necessarily being separate.  Whether it should be separate is another issue.  There are clearly many who think that a legal jurisdiction must necessarily bring with it differentiation of various functions – a court system, legal professions and so on, and that normatively it should do so.  However, it is not clear why that is the case.  There may be good arguments to have separate as well as distinct systems (and to devolve those systems), but they are different questions from those about having a Welsh legal jurisdiction.

There are of course clear precedents for having separate legal jurisdiction without necessarily also devolving control of them.  Northern Ireland has been a separate legal jurisdiction since 1922, when it was formed by severing the former jurisdiction of Ireland when the Free State was created.  The legal system was under the control of the Stormont Parliament until direct rule, but from 1972 until 1999 was under Westminster’s control (though much ‘domestic’ legislation for Northern Ireland was made by orders in council rather than primary legislation).  Scotland remained a separate legal jurisdiction after the Union of 1707, with protections for the legal system, the Court of Session and criminal appeals included in the Articles of Union – but under Westminster’s control until 1999.  Even Wales retained a distinct system of courts (the Court of Great Sessions) after its legal absorption into England from 1542 until 1830.

Part of the attraction of a ‘minimal’ distinct-but-not-separate Welsh legal jurisdiction is that it directly deals with the problem that presently needs to be addressed.  The most pressing problem is the entangled nature of the England-and-Wales legal jurisdiction, and its implications for a ‘reserved powers’ model for the National Assembly.  Other questions about what should be devolved and how are more complex and there is clearly little agreement about them.  (There also seems to be little inclination in the Wales Office to take such issues on.)  Trying to resolve those now risks letting the best be the enemy of the better.  Perhaps the way forward would be to leave those issues for resolution later on; put in place a minimal jurisdiction now, and resolve other questions later on.

Otherwise, there are three options.  One is another protracted and obscure constitutional debate about a legal jurisdiction, which will delay any action to implement the Silk Commission’s Part 2 recommendations or the St David’s Day process.  The second is an incomplete and highly complex form of reserved powers, which itself will need unpicking and reconstructing in due course, so this will only be another interim arrangement not a durable and lasting settlement.  The third is to ditch the St David’s Day process recommendation of reserved powers altogether.  Following the puzzling judgment in the Asbestos Diseases Costs case, that’s highly unattractive, as it is now almost impossible to give clear advice about what devolved legislation will be within the Assembly’s competence. The Secretary of State can’t go backward and can’t stand still – so will he accept the logic of the situation in delivering his commitment to move forward?