Ed Jacobs reports on the Welsh government’s plans for an independent legal system.
The Welsh government has launched a consultation (pdf) on the establishment of an independent, Welsh legal jurisdiction. Under the current legal system, England and Wales are joined together as one unit, as compared to Northern Ireland and Scotland which enjoy legal and judicial independence.
Following last year’s referendum, which saw Wales clearly and decisively voting for the Assembly to gain full law making powers however, ministers at Cardiff Bay now believe the time is ripe to consider a separate legal system to match.
Outlining the rationale for the proposal, first minister Carwyn Jones, himself a lawyer by training and a former Counsel General, argued:
“The constitutional landscape in the United Kingdom has changed significantly since devolution of powers to Wales, Scotland and Northern Ireland in 1999.
“Wales is an old country, but a young democracy. As first minister, my overriding priority is to make devolution work so that we deliver our commitments to the people of Wales.
“The development of a legal system fit for a healthy and prosperous Wales is vital.
“The devolution of further powers to the Welsh government and National Assembly will inevitably mean more distinct Welsh law applying in Wales in the future, which means the law that applies in Wales and the law that applies in England will become increasingly divergent.
“We now feel it essential that we have a public debate on whether or not Wales should be a separate legal jurisdiction, and the implications this could have for Wales and the rest of the United Kingdom.”
Echoing this view, current Counsel General Theodore Huckle, who earlier this week presented the proposals to AMs, observed:
“We are clear that separate jurisdictions can exist within a United Kingdom – Scotland and Northern Ireland have their own jurisdictions separate from that of England and Wales.
“In this context, the time is now right to consider whether or not there should be a separate legal jurisdiction for Wales.”
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The plans, however have received a somewhat cool response from the UK government, with Welsh secretary Cheryl Gillan saying:
“This is a surprising priority from the Welsh government and I am not clear on the problem that needs to be addressed. How would such a change benefit people or business in Wales?
“The current system for England and Wales has served Wales well for centuries. There is no reason to make changes simply for change’s sake.”
The publication of the Welsh government’s consultation document comes amidst a growing debate about how the legal and judicial system should respond to the changed constitutional landscape in Wales following last year’s referendum.
Speaking to the Guardian, Theodore Huckle has argued that in order for it to reflect the devolution settlement, the Supreme Court now needs a dedicated Welsh judge sat on it. Likewsie, calls have been made for the establishment of a Welsh Ministry of Justice, free from London control.
Addressing the annual lecture of the Association of London Welsh Lawyers just last week, Lord Justice Pill argued:
“We do not have judicial or administrative structures in Wales appropriate to the developments which have occurred and are occurring though this is not to doubt the capabilities of those in the Welsh government who carry responsibilities at present.
“There are now powerful legislative and executive institutions in Wales. Arrangements should be in place to ensure that they respect, and promote, the judicial arm of the constitution.
“While the administration of justice is not itself a devolved function, the functions that are devolved have an impact on the administration of justice such that its requirements must percolate into their exercise so as to be integral with them.
“Equally, in my view, and in the view of the Welsh Committee of the Judges Council, judicial structures should be in place to provide the necessary liaison and interaction.
“In pursuit of that, I do express the view, albeit tentatively, that even under present arrangements, a surrogate Ministry of Justice for Wales should exist. There is a need, as I see it, for a department to take responsibility for matters relating to the administration of justice and relations with the judiciary and with tribunals.
“The present and prospective exercise of powers in Wales has significant impact on the administration of justice and the function needs to be performed. I doubt whether other options, a branch of the Ministry of Justice in London operating in Wales, or remote control from London, would now be acceptable on either side.”
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