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Welsh Law: A New Jurisdiction for Wales?

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About The Author

Elijah Granet (Regular Writer)

Elijah is a GDL student at City, University of London, originally from California.  Before law, he most recently completed an MPhil in Politics & International Relations at Clare College, Cambridge.  His main areas of legal interest include commercial, private international law, administrative, and European  law.   Outside the law, he also fences, occasionally appears on game shows, and thinks of third items in lists.  Elijah blogs at ezgranet.com
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...it is no longer sensible to talk of the law of England and Wales. It is a relic of the past. The law of England on the one hand and of Wales on the other has already diverged and will continue to do so. This is an inevitable consequence of the creation of a legislature for Wales with primary law making powers. A legislature, naturally, legislates. So a fundamental characteristic of a legal jurisdiction – one uniform body of law – no longer exists.

Jeremy Miles, Counsel General for Wales

In May of this year, the legislative body currently called the National Assembly for Wales will formally become known as Senedd Cymru or the Welsh Parliament. The new name signals a new era in Welsh devolution heralded by the Wales Act 2017, which transitioned Wales into a reserved powers model like the one used in Scotland and Northern Ireland. This means the new Welsh Parliament will have power to legislate on all areas not explicitly reserved by Westminster, rather than on a set list of areas "conferred" on Cardiff.

While Encyclopædia Britannica’s entry on Wales once read merely: ‘See England,  and all references to England were by law taken to include Wales, today Wales is a distinct and self-governing political unit with significant powers over its internal governance. As Welsh elections produce different governments to UK general elections—due to a mix of Wales’s Labour leanings and use of proportional representation - it is quite possible that the 2020s will see increasing legislative divergence between the polity of England and the polity of Wales.  Meanwhile, the Wales Act 2017 created a President of Welsh Tribunals, acknowledging the increasing importance of devolved tribunals in the polity.   The Welsh government is also looking to codify Welsh legislation, meaning that, soon,  Codes of Welsh Law may symbolically sit alongside Halsbury’s Laws of England on legal bookshelves.

The Thomas Commission

This political and legal change has brought newfound attention to a longstanding debate over the creation of a new Welsh jurisdiction.  The topic has been at different times the subject of various commissions, inquiries, draft legislation, academic research,  media debate, and party manifestos. However, the clearest route for reform so far has been set out by the report of the Commission on Justice in Wales (‘The Thomas Commission’), which included some of the most eminent names in Welsh law, not least its eponymous chair,  the Rt Hon The Lord Thomas of Cwmgiedd, and was published in October 2019.

The report looked at all aspects of the law in Wales, and amongst many findings noted that Welsh justice suffered from inter alia incoherence, incoordination, and unaccountability. This problem could partly be addressed, the Commission argued, by major developments in devolution to both the Senedd and the Welsh Executive, but it also required jurisdictional changes, not least because existing Assembly Measures (let alone future Acts of the Senedd) already show a unique jurisprudence of human rights and a notable degree of divergence from English law.

As a result, the Thomas Commission recommended that in the long-term, a distinct Welsh judiciary and court system ought to be established (while retaining the jurisdiction of the Supreme Court), Welsh law ought to become a distinct body of precedent and juridical method, but that England and Wales ought to retain a single legal profession.  These long-term recommendations are complemented by the more immediate recommendations of the Welsh government, which stands by pre-Wales Act 2017 proposals for the immediate creation of a distinct Welsh jurisdiction which would initially share a judiciary and legal profession with England.  Under these proposals, at least in the near-term, judges of the High Court of England would also be judges of the High Court of Wales, much like the Justices of the Supreme Court are also the judges of the Judicial Committee of the Privy Council.

A New Welsh Law?

The thrust of these recommendations—the creation of a new jurisdiction—is a natural consequence of devolution.  As the then-Counsel General for Wales Theo Huckle QC, observed in 2015, it appears that ‘every [sub-national] legislature in the common law world has an accompanying legal jurisdiction.’ This is in part because of the vital role that statutes play in the development of the common law. In the 2017 Hamlyn Lectures, soon-to-be Justice of the Supreme Court Professor Andrew Burrows QC argued that statutes should be in dialogue with judges and existing common law principles.  It would be absurd for Acts of Parliament applying only in England to determine the common law in Wales, or vice-versa; equally, it would be just as absurd for valid statutes to be ignored by judges in order to maintain the unity of the jurisdiction.

Furthermore, the normative need for separation cannot be overstated.  It is essential for the maintenance of the rule of law that people feel attached and connected to their justice system, and that the legal institutions of their polity are given their due dignity and respect.  If Wales is made to feel like the Cinderella polity of the UK, lost and forgotten amidst the separate jurisdictional arrangements for other component parts of the Union, it could undermine this crucial public trust. 

This is especially true with regards to the Welsh language and the legal system: while Welsh speakers have been able to use the Welsh language in Welsh courts since the Welsh Courts Act 1942, the overwhelming Anglophony of England & Wales as a jurisdiction means that the Welsh language is not given equal esteem.  For example, as the Thomas Commission observed, Welsh medium legal education is relatively rare, professional examinations are generally not available in Welsh, and legal life is generally conducted in English.

Even with the best of intentions, it is simply unlikely that institutions like the Solicitors Regulatory Authority, Bar Standards Board, or HM Courts & Tribunals Service will have the time, resources, or knowledge to develop and promote a Welsh language legal profession, particularly given that Welsh speakers are a minority even in Wales.  By contrast, devolved institutions have experience in encouraging, albeit with mixed success,  that Welsh speakers can engage with the  State in their first language as far as possible.

There is also a powerful moral and historical case for separation. Wales once had its own sophisticated system of laws, codified by Hywel Dda in 950 and situated firmly within the broader European legal traditions. In an alternate history, this law might have survived as a distinct system, much as Scots law did, but it was instead lost to conquest. From the Statute of Rhuddlan 1284, which imposed English common law on Wales in all but a few areas, to the Law in Wales Acts 1535 & 1542, which abolished any separate Welsh law, to the Law Terms Act 1830, which abolished a separate Welsh court system known as the Court of Great Sessions, the past eight centuries are replete with examples of English and later British governments taking active steps to destroy Welsh legal identity, usually without regard to the opinions of the people in Wales.   

In a modern and multicultural Britain, with separate jurisdictions already established for Scotland and Northern Ireland, it seems only fitting that the state should reverse its previous policy and seek to promote legal diversity for Wales as well.  As the Welsh government has noted, a 2014 BBC/ICM poll founded 60% support among Welsh people for the devolution of justice, suggesting that in contrast to this history, the creation of a Welsh jurisdiction would have popular consent.

Drawbacks to Separation

There are some notable potential drawbacks to the creation of a new jurisdiction.  If handled poorly, separation could drive English business away from Welsh solicitors, lead to the brightest Welsh legal minds seeking to train in England instead for access to a larger legal market, and lead to rent-seeking, protectionist behaviour which creates barriers to entry in the Welsh legal market. For example, a separate Welsh jurisdiction might restrict rights of audience in its courts to a small pool of separately Welsh-qualified barristers and solicitors-advocates,  and erect bureaucratic barriers to cross-qualification. Wales could cut standards and regulations to try to attract business from England, thus creating a race to the bottom in the legal market.  There is also a very real possibility that a new Welsh jurisdiction could increase administrative complexity and uncertainty, exacerbating the complexity and uncertainty already caused by Brexit.

However, the establishment of a Welsh jurisdiction does not necessarily have to be as the Thomas Commission proposed, modelled on the distinct court systems and legal professions of Northern Ireland and Scotland. Instead, more flexible models could allow the benefits of Welsh jurisdiction while minimising friction and barriers, which would allow distinction without separation, either in the short term or permanently.

Throughout the academic and legal discussion of this issue, many creative models have been proposed, drawing on comparative experience.  For example, Professor Richard Percival has outlined how Welsh courts could be given jurisdiction in certain devolved areas, while retaining common UK courts in others (eg. admiralty law); here valuable lessons may be learned from Canada, which has clear rules for allocating jurisdiction according to subject matter between federal and provincial courts.    Equally, the judiciary does not need to be either fully shared or fully separate; Hong Kong and Belize, among others, employ a mixture of domestic and Commonwealth judges.  The twin goals of fostering a distinctively Welsh law and ensuring that Wales is not hampered by jurisdictional protectionism are not mutually exclusive.   

Of course, while a distinct Welsh jurisdiction may well be, in the words of the Counsel General for Wales Jeremy Miles AM an ‘inevitable’ necessity in legal terms, its creation is ultimately dependent on political fact in Westminster, not Cardiff. Only an Act of the UK Parliament can alter the structure of the legal system. The history of law reform is littered with brilliant and useful ideas which are never implemented, alongside disastrous and unnecessary proposals which become law.  It is unclear if the growing strength of the Conservative Party in Wales will make Conservatives in Westminster more comfortable with devolution (as they might otherwise be reluctant to hand power over to a polity they stood no chance of governing), or if it will instead be interpreted as a mandate against further devolution.

This is all further complicated by Brexit, which will alter the balance of powers in the UK by giving Westminster powers formerly reserved to EU institutions.  Even if the government supports the creation of a new jurisdiction in principle, the packed legislative timetable during the Brexit transition period and trade talks may make it difficult to find the parliamentary bandwidth for a major restructuring of the legal system.

Even in the most optimistic scenarios for judicial devolution, it will be many years  before distinctly Welsh Arglwyddi Ustusiaid Apêl are making rulings from a new Llys Apêl in Cardiff.  Despite this, it is hard to see how, unless the current devolution settlement were radically altered, political roadblocks will not eventually give way to reform.  If 2020 is to bring a Welsh lawmaking body with significant powers, then it is surely right that it is scrutinised by a judiciary attuned to the unique circumstances of Welsh law.

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Tagged: Constitution, Public Law, The Judiciary

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