Should Wales be a Separate Jurisdiction?

Daniel Priestley - Editor & Writer

Devolution - which is the transfer of delegation of power to a lower level usually from central government to a regional administration - has evolved dramatically in the last 20 years, taking powers from Westminster and giving them to the National Assembly for Wales and the Welsh Government. Multiple referendums have presented a somewhat weak, but present democratic mandate for Wales having more control over its own destiny and this has been reflected in this movement of power. Since the passing of the Government of Wales Act in 2006, these devolved bodies have had the power to change law and policy in 20 areas including culture, education, housing and tourism. On March 3rd the Welsh people voted to “affirm the role of the National Assembly for Wales as a primary lawmaker” giving the Welsh legislative agenda a clear democratic mandate. The Wales Act 2017 has now given the assembly powers over more areas and have moved the welsh government to a reserved powers model - meaning that the Welsh Government can legislate on all areas unless the UK government has reserved power in respect of an area. All of this has culminated in an increasing divergence between Welsh and English law and leads to the question of whether Wales should now become a separate legal jurisdiction, for the first time since the Act of Supremacy in 1534. A further question is whether or not a separate Welsh jurisdiction would require its own judiciary, lawyers and institutions of law?

So what are the arguments in favour of a separate jurisdiction for Wales? Liz Saville Roberts MP (Plaid Cymru) has pointed out that “Wales is the only country in the world that has a full lawmaking legislature operating without a corresponding legal jurisdiction and this is unsustainable.” The current English and Welsh joint jurisdiction is based on a common body of law with a single set of administrative arrangements; this basis is arguably out of date when paired with the powers of legislative devolution now possessed by Wales. There is also the argument that the UK’s departure from the EU will result in the acceleration of the development of the growing body of Welsh law - assuming that the Assembly obtains powers currently held by Brussels. One argument against a separate jurisdiction for Wales is that the concept is yet to gain a democratic mandate - however there has been a clear democratic voice in favour of Welsh legislative devolution and the divergence in law caused by this needs to be met with separation of jurisdictions.

However despite the present trend of passing power to Wales, the UK government currently has no intention of “partitioning the unitary jurisdiction of England and Wales.” When compared with Scotland, the reasons for this become clear. Scotland has had a distinct legal tradition since the Act of Union in 1707 whereas Wales as a country was conquered, and it’s legal tradition assimilated with the English system. Pairing this with the traditional lackluster appetite for devolution, it shows why it has taken so long for Wales to get as close as it has to a separate legal jurisdiction. The inconsistency at the rate devolution has taken place also makes it hard to predict what will happen in the future. In the autumn of 2017 Carwyn Jones announced the creation of a Commission on Justice in Wales which is reviewing “the operation of the Justice system in Wales and set a long term vision for its future” chaired by Lord Thomas of Cwmgiedd. This commission is due to report in 2019 and most recently issued a call for evidence on the 27th of February. This could result in concrete proposals being made for a separate jurisdiction being made but what might these proposals look like:

If the separate Welsh jurisdiction mirrored the Northern Irish model it would require the following institutions: “High Court in Wales; Court of Appeal in Wales; a Welsh judiciary under the leadership of a Lord Chief Justice for Wales; a Welsh legal profession; and National Assembly for Wales with control over the police and prisons in Wales.” However, the splitting of the Judiciary and legal professions could cause pragmatic problems for those qualified to practice in England and in Wales. The setting up of these institutions would also likely be very expensive and so comes the question in a time of Austerity, will the Government allow funding going towards what the public may see as an investment in bureaucracy? The questions relating to Welsh devolution and a Welsh jurisdiction are complicated and ongoing but with the Commission on Justice in Wales due to release it’s findings this year, we could soon find that they have an answer.

 "Say not the Struggle naught Availeth: The Richard Commission and After", Annual Lecture of the Welsh Legal Affairs Centre, Aberystwyth University, 2004
“Is breaking up hard to do? The case for a separate Welsh jurisdiction” Gwynedd Parry


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