A legal jurisdiction for Wales?

Alan Trench looks at whether a separate Welsh legal jurisdiction should be established.

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?

Alan Trench is an academic, associated with the University of Ulster, the University of Edinburgh and the Constitution Unit at University College London.

20 thoughts on “A legal jurisdiction for Wales?

  1. When it comes to the Devo matters most politicos and many academics too seem to have lost all relationship with reason and this is most evident in Wales.

    Welsh devo ain’t working but in the absence of the free media that’s is not controlled by the Welsh speaking nationalists, Welsh people are largely left in the dark (Welsh devo ‘demand’ is politico and politics driven and not by a man in the street)!

    We know that Scotland & N. Ireland have a separate legal jurisdiction from that of England and Wales but then we must not ignore that simple fact of geography that puts Wales into an entirely different category.

    In simple terms the E/W border stretches for some 160 miles (from the Dee estuary, in the north, to the Severn estuary in the south) and under any definition is an invisible border where communities interact without being conscious of any ‘national or nationality divisions’.

    In short even contemplating a transfer of Judicial and Policing powers to Wales is a madness in its own right as such a step would be of immense damage especially to Wales – Costs alone prohibitive then issues like the simple commercial and other legal transactions that are done daily by Law firms from either side of the ‘border’ – Once you separate legal jurisdiction England based Law firms couldn’t work in Wales and the other way round – No doubt a ‘Music for Nat’s ears but a DISASTER for Wales!

    As a footnote Alan, can Republic of Ireland law firms work in N. Ireland without setting up offices there?

  2. @ Jacques Protic

    ‘Welsh devo ain’t working …” What is your evidence?

    ” The E/W border stretches for some 160 miles …”

    The Franco/German border is 450 km long (297 miles approx)

    The Chinese/Russian border is 4209 km long (2,615 miles)

    The US/Canadian border is 8,891 km long (5,525 miles)

    What is your point regarding borders exactly?

    If there was a separate legal jurisdiction (as opposed to a distinct one) in England and Wales, then an English based law firm could practice in Wales but they would have to be quallfied in Welsh law. The same would go for Wales-based law firms practising in England.

  3. This is a well-considered and thought provoking article. The difficulty that it addresses is how to use legal thought as a way of navigating one’s way through what is, after all, a constitutional and thus legal issue. In Wales, debates of this nature very quickly get hijacked by political discourse which uses policy and funding as its frame of reference which are, when discussing legal change, secondary issues.

    His suggestion that Wales would have courts of two jurisdictions has a great deal to recommend it. It recognises that Wales is largely governed by English law and has been for centuries whatever political resentment there may be about that. But what is now emerging is a body of law that can be called Welsh law. By this I do not mean English law that applies to Wales only, though that could be included, but rather those laws passed by a Welsh legislature. It is only appropriate that a Welsh court should hear cases under that legislation. The fact that the English court and the Welsh court could use the same buildings would go a long way to address issues of cost.

    I have two questions for Alan which I hope he is willing to address. If there were two jurisdictions, then presumably there would need to be an English court of appeal as now, but there would also need to be a Welsh court of appeal. I assume that your model would still leave the Supreme Court as the final arbiter. Is this a fair representation of your position? Also how would you deal with the issue of public perceptions of two jurisdictions using the same building as being confused by this set-up?

  4. RBJ – Concerning UK borders only and related geography Scotland & N. Ireland could be on another continent as far as daily interchange between communities is concerned. Wales stands out as it’s economy hubs are next to England in the North and in easy access in the South via the M4 link (People work in either of the ‘nations’ and often commute from the other side of the ‘border’).

    Giving Wales Legal & Policing jurisdiction just to please few nats would be an economic suicide ignoring many other equally important considerations (Inward investment springs to mind et)!

    Next time RBJ for people like you, I’ll use Darren Hall’s approach – No Dialogue with Devo deniers In his context and in my context No further dialogue with the Y Fro fanatics!

  5. You’re right that Wales has a long border with England compared with its size but that does not render it incapable of having its own legal jurisdiction. You also have not made the case that a distinctive jurisdiction for Wales will cause economic decline. Trade between England and Wales will continue just as it has before. There are different legal jurisdictions throughout the continent of Europe and yet cross-border trade is an everyday event as is cross-border commuting.

    You refer in your post to ‘people like me’. What exactly is a person like me? Or is a person like me, in fact, just me?

  6. As a qualified lawyer of forty odd years, with experience in government at local, central and at an international level, and with many years in private practice,I believe I know of what I write., I doubt whether any advantage would be associated with a separate Welsh jurisdiction and numerous disadvantages, including creating huge doubts , especially among those who might consider inward investment. Plenty of jobs for the boyos though,which I fear may be the driver for this possible flight of folly. It works well, so don’t fix it!

    I must have been away along time.When did Plaid secretly take over the Labour Party in Wales?

  7. You are qualified lawyer and yet you refer to yourself as Dai Brassknocker.

    That hardly seems relevant however when your pronouncements concern the economy. Your point is that a distinctive jurisdiction for Wales will detrimentally affect inward investment. As a qualified lawyer (I assume solicitor), you will understand the phrase, “That is your point; what is your case?”

    You may also wish to consider whether a distinctive jurisdiction for Scotland has affected inward investment for that country.

  8. @Dai Brassknocker – Are you a spoof, or are you being serious? I hope that it is the first option, because if you believe readers of this blog are dull enough believe you are a lawyer then God help us.

    For anyone interested in the legal and constitutional debate around having a seperate system, Cymru’r Gyfraith: Sylwadau ar Hunaniaeth Gyfreithiol by lawyer and academic R.Gwynedd Parry is a detailed and in-depth analyis of why such a system should be established.

  9. Ah Dai; you ask a profound question as one would expect from a person steeped in the law:-

    “When did Plaid secretly take over the Labour Party in Wales?”

    It’s often the way that a party has one good line of attack in the midst of policy dross and unpopular standpoints. In Wales, post devolution, the killer question is; Who is the party of Wales? In this you have a call to separate identity but simultaneously a requirement to define some 3 million people in terms of the 60 something million people who live cheek by jowl with us on this small island. Plaid have succeeded in establishing nationalism as the driving force of Welsh politics with the subtle establishment of “We aren’t English” as being the prerequisite of all political discourse. In this way we have ruined an outstanding Education system by simply looking at what England was doing and doing something entirely different.

    Policy in Wales is driven by the underlying need to establish that your party is thoroughly and identifiably not ENGLISH. If Plaid were to claim tomorrow that all their AMs ate only Welsh cakes and had only Daffodils in their gardens then the AMs of all the other “Welsh” parties would make a claim that they too refused to grow the Rose of England and existed on a diet of laverbread and leeks.

    Utility or the desire to improve the lot of people in Wales has nothing to do with political posturing down in the Bay of Inconsequence. Just prove that you are more Welsh than your political neighbour.

  10. Dai:

    What about the “jobs for the boyos” in England? Wales has been robbed of legal & administrative top jobs for centuries, & the cash that goes with them ~ all going to the old boys club in London. It’s part of the reason why Wales is impoverished today.

  11. To answer Rhobat Bryn Jones regarding appeal courts and the UK Supreme Court: the ‘stripped-down’ approach I suggest here would imply a Court of Appeal of Wales, with similar functions as the current Court of Appeal of England and Wales (and a future Court of Appeal of England), and with similar rules for composition, procedures, etc. In other words, the judges of the Court of Appeal of Wales would be (or could be) the present Lords Justices of Appeal of England and Wales, along with those (mainly retired Lords Justices) entitled to sit.

    As regards the UK Supreme Court, that presently acts as an appellate court in relation to all three sets of appeal courts from Scotland, Northern Ireland and England and Wales, for both criminal and civil matters (but with restrictions about Scottish criminal appeals and some special criteria, shortly to change, for Scotland. It also has a ‘leapfrog’ jurisdiction for devolution issues cases, mainly issues of competence about devolved powers. There’s no reason to change any of that. The Supreme Court would simply operate in relation to four legal jurisdictions and systems of law, not three.

  12. @ Alan Trench

    Thank you for the clarification. I thought that might be the case but I wanted to be sure. It sounds like a very workable plan.

  13. Shame Alan Trench remains silent on some other issues relevant to Wales but have a ‘Brain Teaser’ for him. Who do you think the Welsh Language Tribunal is answerable to Alan – The Supreme Court or the Welsh Language Commissioner or….?

  14. @ J Protic

    The answer is neither. The Welsh Language Tribunal was established by statute and its authority comes from that statute, the Welsh Language (Wales) Measure 2011 which was passed by the National Assembly. Given that the Welsh Language Commissioner may often bring cases before the Tribunal, it has no role in the judicial process other than that of complainant.

    Should any of the participants in the original cases wish to appeal on a point of law, they may do so in the High Court.

  15. I am real and I promise not to seek a job in the Welsh media. Incidentally, Dai Brassknocker was a fabled nineteenth century poacher, who shared his catch with the poor.
    My simple point is that the common law of England and Wales is the law that underpins much of the world’s commerce .Even countries without an imperial connection use the common law and/or English black letter statutes.. See the commercial systems of Thailand, Indonesia and Japan.Adopting an uncertain and separate system for its own sake is not a sensible way to go. Comparison with Scotland is unsound. As to jobs, London has many Welsh lawyers, in commerce and government.
    Regarding my last comments, my own Labour roots stressed internationalism: that Wales should embrace the rest of the world, in business, science and the arts, which it can do by stressing what we share in common, including law and language.

  16. @ Dai Brassknocker

    Thank you for the explanation of the cultural reference.

    Who is suggesting that Wales abandon a legal system based on common law?

  17. A bit late in the day to raise another constitutional point as half-life of IWA’s articles is usually less than two days but here it is:

    Found an exceptional argument from an eminent constitutional scholar mainly related to England but references to other nations including Wales too – http://ukconstitutionallaw.org/2015/10/14/david-feldman-england-as-a-legal-and-constitutional-notion/

    As I see it the message is if it works leave it alone and a clear warning contained in the following:

    “When impressed by an idea for change, we too easily ignore the costs and overrate the benefit of dealing with the immediate question. We must ask whether the political and constitutional costs, including opportunity costs, to the United Kingdom will be outweighed by the benefits in the medium to long term of inventing England as a legal and constitutional entity”

    My humble opinion often stated is that the British devo journey is a DISASTER and separating Wales as in independent legal jurisdiction from England would be a folly beyond belief!

  18. The references to Wales are in passing. His main point is that the current constitutional developments necessitate the formation of a modern legal concept called ‘England’. His message is not leave it alone but proceed with caution.

    The paragraph which you quote is the voice of a legal academic concerned for the constitutional integrity of the UK in the context of current developments taking place. That is a voice that needs to be heard. However his main complaint is the piecemeal way in which issues are being resolved. This is a perfectly legitimate complaint but is how, in political terms, Westminster has always handled constitutional change and is a consequence of the belief in an unwritten constitution.

    The other point that needs to be made is that what is being suggested is not an independent jurisdiction but the strengthening of an existing distinct one; Wales has a long history of having a distinct jurisdiction of which the addition of its own legislature is merely the most recent chapter.

    Therefore the view that devolution is a disaster is yours rather than Professor Feldman’s. But perhaps the more important point is that the Welsh electorate’s support for it increased between 1997 and 2011, they are clearly content with the progress being made.

    What often gets confused is the performance of the Government and functioning of the constitution. One example often quoted is the difficulties facing the Welsh NHS. What is puzzling is the view that this is not interpreted as being an issue regarding Government policy but a constitutional one. Clearly NHS practice is the product of Government policy and therefore debates and arguments about that as well as the question of Westminster funding are appropriate. But to argue that ambulance arrival times are proof that a constitutional entity such as the Assembly shouid be abolished is to defy any kind of recognisable logic or reasoning. The English NHS is now in considerable difficulty, both financially and in terms of safety. Yet no-one argues that is evidence for the abolition of Westminster or the United Kingdom.

    It comes back to Daran’s point about devolution deniers. If one does not accept that the issue was decided by the Welsh electorate in 1997 and confirmed in 2011, then all the change that occurs subsequently predicated on those votes will be a perpetual shock. The alternative is to accept that devolution is here to stay and respond accordingly. One can vote for those parties who best represent our views or have nothing to do with democracy and pursue a hobby that provides pleasure. Otherwise the only thing to look forward is a life of permanent distress. Who would want to choose that?

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