Saturday, 24 November 2012

Creating a Welsh legal jurisdiction

Following this week's Supreme Court judgement, the legal authority
of the Welsh Assembly is solidified. However, is a Welsh legal jurisdiction -
or subsequently, reserved powers - required to cement it once and for all?
(Pic : BBC Wales)
Earlier this year, First Minister Carwyn Jones and the Counsel General, Theodore Huckle QC, launched a wide-ranging consultation on the creation of a Welsh legal jurisdiction. An inquiry is currently being led by the Assembly's Legislative & Constitutional Affairs Committee, all the details are available here. It looks as if they are preparing to report back on it fairly soon.

Now, this is going to be one for the anoraks, but it's an issue that's come to the fore recently (indirectly) because of the Supreme Court case involving the Local Government Byelaws Bill (A farce that should never have happened). As you probably know, the Welsh Government quite comprehensively won that argument.

What is a legal jurisdiction?

The Welsh Government's consultation document has a wider discussion on this (p 4-9), but I'll simplify things.

In short, a legal jurisdiction is a defined territory within which laws, and designated legal authority, apply. This could sometimes go so far to include a separate courts and legal system. Scotland and Northern Ireland are "separate legal jurisdictions". Wales and England are part of the same legal jurisdiction.

A brief history of EnglandandWales

Until Henry VIII's Laws in Wales Acts (LIWA), Wales was a half-way house legally. Although the Welsh had been subject to English common law, it was administered slightly differently. Marcher Lords retained some powers – and were quite influential - whilst some aspects of the civil court system remained distinctively Welsh.

The LIWA formally absorbed the Welsh legal system into the English model, creating a single legal jurisdiction for England and Wales (nominally England).

It established the "traditional counties", the Welsh language was no longer a language of the courts and Welsh people were effectively granted "English subject" status. All this helped the Welsh gentry assimilate themselves into the English aristocracy, and the effects of these things are with us in the present.

The LIWA have been called an Act of Union between England and Wales, but that's open to interpretation. The LIWA had nothing to do with political union, just merging the legal systems. Wales was brought into the union by Norman annexation over several centuries and the Statute of Rhuddlan - not political union in the same way as Scotland (1707) and Ireland (1800).

Parts of the LIWA were repealed by the Welsh Language Act in 1993, which put Welsh on equal standing with English in public life, as well as other bits of legislation before this. Wales also became part of the double act of "England and Wales", after the Wales bit was rather silent for several hundred years.

In subsequent years, Government of Wales Acts in 1998 and 2006 have formalised Wales' position within the Union as a distinct national/territorial unit. Since 2006, a distinct body of Welsh law has also developed, and since 2011, the Assembly has had greater law-making powers in devolved areas. The Assembly also has powers over community safety, tribunals and the family court system.

So, Wales already meets some of the definitions of a legal jurisdiction. However, legally, Welsh laws are part of EnglandandWales statute books – they just apply only to Wales. This isn't the situation in the other devolved administrations, or the Crown Dependencies. Confused?

And now - partly because of this, partly because of politics (see Daran Hill's recent piece at Click on Wales) - we have Welsh laws, passed by a Welsh legislature, being entangled in the Supreme Court. If Westminster tried that with Alex Salmond, Scotland would already be independent.

I always put EnglandandWales in italics because it's not a nation - it's a "thing", and now it's becoming a constitutional tumour. Welsh devolution reaches yet another pointless, unnecessary roadblock.

A Welsh legal jurisdiction : What's the point?

On the surface, this sounds like a very technical issue, but if it did happen, it would have wide-ranging impact on the devolution settlement.


Would a Welsh legal jurisdiction make it easier
to devolve areas like policing?
(Pic : BBC Wales)

"Welsh laws, made in Wales, for Wales" – Those of us who bothered to vote said yes to this in 2011, logically this is a conclusion to that process. The National Assembly would have an unquestioned authority to make laws in defined devolved areas, within Wales, to suit Welsh needs. There would be no justification for Westminster "hand holding" and it might dampen (but not eliminate) the threat of Welsh Bills being called in by Welsh Secretaries or the Attourney General.

Equal footing (legally) with Scotland – It's a bit more complicated than saying EnglandandWales would be over once and for all, but it would be a huge step in this direction. Each constituent nation (minus Cornwall) would be their own legal jurisdiction for perhaps the first time ever. The UK would finally be inching towards a more formal federal-lite model.

It would make devolving criminal justice easier – I believe one of the reasons things like policing haven't been devolved yet, might be the lack of a legal jurisdiction for Welsh police forces to work in. It would be too confusing to decide who has authority over what - the police would uphold EnglandandWales laws, whilst being accountable to the National Assembly. That would be yet another constitutional mess. A Welsh legal jurisdiction would clear things up, and make it easier for a Welsh legal system to function – if responsibilities were devolved.

The creation of a Welsh "Legal Society" – This might be dependant on devolving criminal justice. Having (potentially) a Welsh Inns of Court, Welsh Bar association and Welsh Judiciary would give us some standing in terms of the British court system(s). I think, personally, it would be the most significant development in Welsh "nation building" since 1997. It could lead to the creation of more opportunities for Welsh law/legal graduates closer to home. For example, if you had some major legal hurdle in Wales to overcome, eventually you would only – realistically - be able to use a Welsh legal firm when currently you could just as easily use one in Bristol as you would Bridgend. Legal cases under Welsh law would have to be heard in Welsh courts too.


Would it be too complicated - and too expensive - to start
to separate into English and Welsh judiciaries?
(Pic : UK Department of Justice)

It wouldn't lead to better laws being drafted – This is a big point. It wouldn't improve law-making by the Assembly, and wouldn't lead to improvements in scrutinising legislation. One of the more disturbing issues raised by the Byelaws case, is that no AMs, or Welsh Government ministers, picked up on any possible conflict. They were proven right in the end, but they need to be more careful. Ultimately, this will come down to the colour of the governments we have either side of the M4, and the legislative drafting skills of AMs and Assembly Commission staff.

It's worthless without criminal justice powers – Saying it should be devolved is easier than doing it. This is one of the points raised by Theodore Huckle, but not necessarily because he supports the move. Having a legal jurisdiction without any corresponding legal "teeth" (policing, prisons, probation, courts) would be a hollow, symbolic gesture. Devolving the police would be relatively simple, but the courts system would be more difficult as there's (currently) little of the administrative apparatus in place.

Duplication of functions previously shared – The effort required to create a stripped-down legal jurisdiction (in which Welsh laws only apply to Wales) would likely be minimal. The cost of criminal justice powers, or even a Welsh judiciary (with or without justice powers) would be an issue. I imagine justice spending could simply added to the block grant. But as I (sort of) pointed out in The Big Independence Question, there are discrepancies between how much is actually spent on criminal justice in Wales (out turn expenditure) and how much is reported by the Treasury, or even the Welsh Government's own figures. In short, there appears to be far more reported to be spent on certain things in Wales than is actually spent. That could be the same across whole (UK) government departments.

Increased differences between Wales and the rest of the UK – Is the chance to make criminal law to serve Welsh needs worth it? Or is the current system working so well, that it needn't be interfered with? For those reasons, it could have both a positive, and negative, impact on the Welsh legal profession in particular. My Bristol and Bridgend argument above could easily be the other way around. There's nothing fundamentally wrong with the (English) legal system as it is. But as I pointed out, in terms of devolution, I think a single EnglandandWales legal jurisdiction is starting to become a nuisance. Despite my allegiance, I can see both points to the argument.

The impact on devolution

Westminster would retain significant authority over many matters,
but are a Welsh legal jurisdiction and reserved powers intertwined?
(Pic : The Guardian)

Firstly, it has to be pointed out that even with the creation of a Welsh legal jurisdiction, there would still be an overarching "UK" legal jurisdiction. The UK Supreme Court would still be the highest court, and in the case of Wales - unless the criminal justice powers came with it – policing, prisons and courts would (as I understand it) remain run on an EnglandandWales basis.

As the First Minister and Counsel General have suggested, it might lead to the requirement of a Welsh judge (and presumably Scottish and Northern Irish judges too) sitting alongside English judges on the Supreme Court. I don't see the point of a single Welsh judge sitting there - at the moment - until some of these issues are sorted out. It seems symbolic more than anything. They don't actually believe we're equals in the Union, do they?

For this to work effectively, Wales would almost certainly need a "reserved powers" model like Scotland. That means powers would be retained explicitly by Westminster, rather than powers explicitly devolved on a piecemeal basis - as currently.

It sounds like Lilliputian arguments over breaking eggs, but it would clear up where Wales and Westminster stand constitutionally. It would go some way to setting the Assembly's powers "in stone" and make the Assembly seem less subordinate in legislative terms.

The Assembly has a (perceived) status half-way between a county council and a devolved parliament like Scotland within EnglandandWales - where it's obvious the "Daddy" legislature for EnglandandWales is Westminster.

Both the First Minister and Ieuan Wyn Jones (Plaid, Ynys Mon) raised the issue recently, and steps towards reserved powers are now becoming a jog (Manon George & Alan Trench). If there are any problems with the Organ Donation Bill – I'm expecting there'll be a rough ride - those jogs will become sprints.

It remains to be seen whether a legal jurisdiction would be a pre-requisite for reserved powers or not - I think it would be. There's no point in reserved powers without a jurisdiction in which those powers would apply. However, complications resulting from the creation of an embryonic Welsh Judiciary might make the idea sound more appealing that it actually is.A Welsh legal jurisdiction would, in my opinion, mark a bigger "growing up" phase in Welsh devolution compared to the fiscal powers announced earlier this week.

In terms of the "devolution journey", the original Assembly (1999-2006) was Welsh politics in the primary school, 2006-2011 was GCSE. Welsh politics is currently studying A-Levels. This move (combined with reserved powers and fiscal devolution) would put Welsh politics in the first year of university. Federalism or Devo Max would be a university graduate - and that's where most people would get off. Confederalism would be Masters, whilst independence would be a constitutional and political PhD.


  1. Owen- you've done it again. A superb appraisal of the issues in a way that the lay reader can understand. If you ever feel there's no point writing these posts, please bear in mind they are really useful to people who may not be experts but want to be informed.

    In all honesty, although legal issues are boring they are a bigger deal than fiscal powers for the time being. I support tax devolution fully, but I don't see huge variations being affordable. However, the triple deal of jurisdiction, reserved powers, and criminal justice, would take Wales a massive step towards federalism. We would still be a part of the UK (which let's remember is what most Welsh people want) but Wales would be on a very strong and confident footing.

    Legally, these moves would create the most independent Wales since before annexation. Putting history aside, I also feel these powers would be meaningful for the people of Wales, and would send out a good message internationally. Because this is the opposite of isolation. This would be the equivalent of a much louder voice for Wales.

    But two things need analysis; we're trying to do more self-government in a time of financial austerity, and in a time of Welsh media paralysis. These two facts could hurt us.

  2. Let me scratch something I just said and say it better; these moves would create the most independent Wales we have ever seen in modern history.

    In spite of not having a national media, not having a decent economy, no history of institutional independence, in spite of unbroken unionist rule and Plaid Cymru being the third party.

    Even a Confederal UK means London faces a massive challenge to its world view. It means Welsh democracy becomes more important in Wales than the efforts of "our" MPs.

    Which is why at some point we can expect a dampening of these expectations by those who have a vested interest in keeping Westminster strong.

  3. Thanks for the comment(s), Anon.

    I wish more "lay people" read the blog, and I think you can use plain English without being patronising, but I suspect this blog isn't read outside of the anoraksphere, and I accept that.

    I agree that something along these lines would be bigger than fiscal powers. I think any federal settlement will be "Britishised", which is why federalism is talked in terms of "Devo-Max" and "Devo Plus" instead of what it is. I don't think MPs will ever stomach the prospect of parliamentary sovereignty being undermined - not even symbolically. I actually think, as you perhaps do, that getting a Welsh legal jurisdiction - even if it makes sense on every single level - will be an uphill struggle.

    On the media issue, I think coverage of this issue by the likes of the Western Mail has - although my opinion on the paper has hardened the last few months - been pretty good. It's just maintaining an attention span that'll be the problem, and I think it'll be even harder come the income tax referendum (whenever that is).

    I think it's important not to start using "independent" to describe federalism or confederalism - even indirectly - but I understand what you mean. I think "sovereign association" or even "Home Rule" would be a more apt description. Independence is what it is.