A distinct Welsh jurisdiction

26 May 2016

Article by Alys Thomas, National Assembly for Wales Research Service

This article is taken from ‘Key issues for the Fifth Assembly, published on 12 May 2016.

Welsh and English laws are diverging. Has the time come for a distinct jurisdiction?

The concept of a jurisdiction is an elastic one but most experts agree that it encompasses a defined territory, a body of law, a separate structure of courts and separate legal institutions. England and Wales currently form a single jurisdiction and the administration of justice is not devolved.

Since 2007 the Assembly has had primary legislative powers which were extended in 2011. This has led some people to claim that there is a growing body of distinct Welsh law, for example on education and social services, which makes preserving a single jurisdiction problematic. This is disputed by others who claim that distinct Welsh law only makes up a small amount of the overall body of English and Welsh law.

The debate has been ratcheted up following scrutiny of the draft Wales Bill and with the Welsh Government’s publication of an alternative Bill containing provisions for creating a distinct jurisdiction.

An emerging legal identity

The debate concerning a Welsh jurisdiction has shifted ground considerably in recent months. Back in 2012 the Fourth Assembly’s Constitutional and Legislative Affairs Committee (CLAC) produced a wide ranging report on the subject. This did not recommend creating a separate jurisdiction, but it noted that a Welsh legal identity was getting stronger. As such, the report suggested that changes should be made within the current unified Wales and England model to ensure that it recognises this emerging legal identity.

Also in 2012 the then Welsh Government held a consultation on the question of a Welsh jurisdiction. In its conclusions the Welsh Government proposed devolving policing, but not criminal justice and the administration of justice. A move to a separate jurisdiction was as such not required, although the Welsh Government believed there was a need to prepare for a time when this may be necessary and beneficial.

As little as three years ago, therefore, the Welsh Government saw the prospect of a separate or distinct jurisdiction for Wales as desirable but only as a long-term objective.

The draft Wales Bill

In October 2015 the UK Government published the draft Wales Bill. One of the draft Bill’s key provisions was a move to a reserved powers model that lists the subjects on which the Assembly cannot legislate, rather than those on which it can.

As committees in the Assembly and the House of Commons scrutinised the draft Bill, they noted that it had been written in a way to preserve the single jurisdiction of England and Wales. Stephen Crabb, the then Secretary of State for Wales, told CLAC that the UK Government wanted to preserve the integrity of the England and Wales jurisdiction. Therefore, the legislation needed to be drafted in a way that gave the Welsh Government freedom to legislate and enforce its legislation, but also provid some kind of boundary that preserved the single jurisdiction.

Other evidence proposed a move towards a ‘distinct’ jurisdiction, as opposed to a ‘separate’ jurisdiction. This would recognise that the laws of England and the laws of Wales are diverging but there would be no need to devolve the administration of justice, to establish a separate courts system in Wales, or to establish separate legal professions in England and Wales.

In February 2016 the then Secretary of State for Wales announced a ‘pause’ in his plans to introduce the Wales Bill. He also said that he had considered calls for a ‘distinct jurisdiction’ or a ‘separate jurisdiction’ but did not currently see a case for this. He did, however, announce that he was establishing a working group involving the Ministry of Justice, the Lord Chief Justice’s office, and the Welsh Government, to consider what distinct arrangements are required to recognise Wales’s needs within the England and Wales jurisdiction under the reserved powers model.

The alternative Bill

In March 2016 the First Minister unveiled the Government and Laws in Wales Bill, drafted by the last Welsh Government, which contains provisions to create a distinct Welsh legal jurisdiction, separating the laws of England from the laws of Wales. The Welsh Government explained that it had undertaken detailed work showing that establishing a reserved powers model within a joint jurisdiction risked creating new complexity and uncertainty. This is why the last Welsh Government’s position had changed from just a few years ago.

The Welsh Government’s argument was further articulated in an article by Theodore Huckle QC, the then Counsel General, in which he argued that maintaining one jurisdiction necessitates maintaining only one body of law – the law of England and Wales. He said that the message being conveyed was that the law in Wales and England were the same. In his view it is ‘a folly’ to keep up this ‘pretence’.

The next steps

The alternative Bill is, of course, neither a Westminster Bill nor an Assembly Bill. When the First Minister laid it before the Assembly he claimed to be doing so ‘in a spirit of constructive collaboration and co-operation’. When announcing the pause in bringing forward the Wales Bill, the Secretary of State for Wales indicated that it was likely to be published in summer 2016. Whether the alternative Bill will have any impact on shaping the Wales Bill or on the deliberations of the working group remains to be seen.

Key sources

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