Theodore Huckle QC makes the case for a legal jurisdiction and devolving justice.
An issue previously considered by some to be technical, abstract and unimportant is now central to the debate on how to create coherent, stable and long lasting constitutional arrangements for Wales.
At the root of the compelling case for a Welsh legal jurisdiction is the historical context. The single legal jurisdiction we have today is the product of the annexation of Wales to England, and the replacement of Welsh laws with English laws, in the 16th century.
It has served its purpose, but was designed for a situation in which the same (English) law applied across the territory of an English jurisdiction. Today Wales, as part of what the Prime Minister has referred to as a “family of four nations”, has its own legislature and government.
These institutions and their law-making functions have been legitimised and entrenched in two referendums. The territory of the jurisdiction – England and Wales – is no longer a political concept recognised within the constitution. To put it another way, it no longer reflects where power lies and how decisions are taken. Across the common law world the creation of new legislatures has been coupled with the formation of a distinct legal jurisdiction. But not in Wales.
The existence of the single jurisdiction means that there is no such thing as a “Welsh” law. Maintaining one jurisdiction necessitates maintaining only one body of law, the law of England & Wales. The message that this sends is that the law in Wales and England is the same. This is not the case and it is a folly to keep up that pretence. It leads to complexity and inaccessibility of the law. UK Parliament Acts state that they “extend” to “England and Wales” but the reader must interrogate the detailed provisions in order to ascertain which provisions apply in Wales. Moreover, such an Act may say it has that “extent” but its provisions may apply only in England. This is already leading to practical problems.
The existence of the Welsh legislature, the fundamental divergence in the law, the inaccessibility of that law and that devolved laws in Wales are made in Welsh and English (both having equal status in law)* are reasons enough for the creation of a Welsh legal jurisdiction.
But the issue has reached such political prominence recently because of the UK Government’s attempt to protect the unity of private and criminal law between England & Wales. So came about the “necessity tests” which have been the source of such consternation following the publication of the UK Government’s draft Wales Bill. The former Secretary of State for Wales describing in evidence the purpose of those provisions so far as were to avoid “significant divergence in the fundamental legal landscape of England and Wales”. The Lord Chief Justice in evidence to the Commons Select Justice Committee has referred to some “illusion of the unity of the common law”, referring to other common law countries, he stated that “…each of them has powers to alter the law of obligations or the law of contract or the law of crime…”. 30% of the world’s population still live under the common law; it is pliable and not uniform.
So the UK Government’s concern is flawed; it is, on the one hand, an illusion and, on the other, unnecessary.
Throughout one legal objective and two (contrasting) political objectives have been in tension: certainty; no reduction in the National Assembly’s existing powers; and no increase in the National Assembly’s powers beyond ‘agreed’ matters. Certainty must surely be essential as it is an issue that has long plagued Welsh devolution and is one of the main aims of moving to a reserved powers model. And no reduction of powers is democratically legitimised by the results of the 2011 referendum. Which leaves only the UK Government’s desire not to extend the National Assembly’s powers.
The necessity tests would have increased uncertainty and reduced the Assembly’s current powers. So far as private and criminal law are concerned they were a legislative overreaction to a minimal risk. It is doubtful in the extreme, that the courts would evolve the common law in radically different ways in the context of a Welsh jurisdiction, even over decades. The current discussion about a Welsh jurisdiction envisages a joint judiciary and the same Supreme Court both of which militate strongly against such a risk in any event. As history shows a separate legislative and a divergence in the law does not imply a change to the fundamental legal landscape.
It is hard to see how any new test or approach in relation to the private or criminal law would not offend one or more of the objectives referred to above. If the answer is that there should be no tests that would mean that within the current single jurisdiction framework there would be two legislatures with concurrent legal power for the private and criminal law (including their basic tenets). This concurrency would be of a different order to the strict legal position that even in devolved areas the UK Parliament can still legislate; that position is regulated by the convention that Parliament will not normally do so without the National Assembly’s consent. But absent any tests in respect of private and criminal law those would be wholly concurrent powers including in respect of the fundamental elements of the common law. That cannot be a sustainable proposition. Such a proposition runs to the very heart of the idea of preserving a single legal jurisdiction. When the infrastructure of the draft Bill designed to maintain the “illusion of the unity of the common law” crumbles so, too, must the edifice of the single legal jurisdiction. A different frame of reference is required.
We are seeing that statute law is diverging fast and we know from experience across the world that despite the common law not being strictly “unified’, its fundamental principles have nevertheless been retained because of the way it works systemically as part of the partnership between legislature, executive and judiciary. The UK Government’s rationale for retaining the single legal jurisdiction is, therefore, flawed.
In its draft Government and Laws in Wales Bill, the Welsh Government has sought to balance the competing objectives in the short term andlonger term. Our view is that the solution is for policing and justice matters to be devolved; but no sooner than 2026. The principle of devolving these matters is something for which there is broad consensus within Wales.
The fact that policing and justice are not at present devolved is probably the main difference between the devolution settlements for Wales and for Scotland. This difference is in my view one of the most important factors in the comparative stability (compared to Wales) of the settlements for Scotland and Northern Ireland. This is because by devolving policing and justice nearly all ‘domestic’ subjects – those highly interconnected subjects that most impact on the day to day lives of the citizen – are devolved, which makes for a far more coherent system.
It means a far clearer boundary between what is devolved and what is not, and it means that there is far less tension between governments over public services that are devolved and those few that are not especially where there are interconnectivities and interdependencies – e.g. the success of prisoner rehabilitation initiatives, which is not devolved, is primarily reliant on services like health, housing, and education, which are. The highly asymmetrical devolution settlements across the UK lead to a perception of unfairness and I have considerable difficulty in understanding why devolution of policing is so readily on the table at present for Greater Manchester but not for Wales.
The arguments to devolve policing and justice are in my view compelling. It also, I believe, goes without saying that this is yet another reason why a Welsh legal jurisdiction must be created.
*See the Welsh Courts Act 1942 which established limited rights to use Welsh in “any court in Wales”. The rights to use Welsh in public life were later enhanced by the Welsh Language Acts of 1967 and 1993 and the Welsh Language Measure 2011.