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Revisiting Legal Wales

Document Cited authorities 1 Cited in Related
Vincent
Author
Date01 January 2019
Pages123-130
DOI10.3366/elr.2019.0533
Published date01 January 2019
INTRODUCTION

In October 2018, the Counsel General for Wales said that the creation of a Welsh legal jurisdiction and devolved justice system is “inevitable”.1 This is not the first time that a Counsel General has made such an announcement.2 Carwyn Jones, Counsel General in 2009, expressed that it would be “inevitable” that the single legal jurisdiction of England and Wales would be called into question with a move to full legislative powers.3

The administration of justice in Wales is now under review by the Commission on Justice in Wales (“Commission”), established by the Welsh Government in September 2017. The UK Government is adamant that the unified legal system works well for Wales.4 On the other hand, the Welsh Government contends that the England and Wales system is “no longer fit for purpose”.5 In returning to the original concept of “Legal Wales”, this overview seeks to consider the constitutional and political developments that have led to the current debate regarding where justice should sit within constitutional arrangements for Wales.

 THE BASIS OF LEGAL WALES

Devolution in Wales is rooted in the unitary legal system of England and Wales since 1536.6 Although some recognition of distinctiveness has historically existed,7 devolution in 1999 brought with it a renewed conception of a Legal Wales. In October 2000, Mr Justice Thomas highlighted the potential for the law and legal institutions to contribute towards the national identity that surrounded devolution.8 The establishment of the National Assembly for Wales, and the ability to change the body of law in Wales, although modestly, was an impetus to reignite the role of the legal community in Wales in a nation-building project. Prominent members of the judiciary, such as Sir Roderick Evans, set out objectives for Legal Wales:9

The repatriation to Wales of law making functions;

The development in Wales of a system for the administration of justice in all its forms which is tailored to the social and economic needs of Wales;

The development of institutions and professional bodies which will provide a proper career structure in Wales for those that want to follow a career in those fields;

Making the law accessible to, and readily understood, by the people of Wales;

The development of a system which can accommodate the use of either English or Welsh languages with equal ease so that in the administration of justice within Wales, the English and Welsh languages really are treated on the basis of equality.

Williams referred to the development of Legal Wales as “a necessary component in the social and economic development of Wales and a litmus test for the maturity of Welsh national government and administration”.10 On that measure, Wales remains a considerable way from maturity even after twenty years of devolution. The last two decades have been dominated by piecemeal reform to the law-making functions of the National Assembly, culminating in a reserved powers model of legislative devolution in April 2018. However, developing the objectives of Legal Wales in terms of administration of justice, remains behind.

 THE INEVITABLE DIVIDE?

Since full primary law-making powers were introduced to Wales in 2011,11 debates on the legal system revolved around the need, or not, of establishing a separate legal jurisdiction for Wales.12 This blurred the Legal Wales objectives, as merely establishing a jurisdiction would not necessarily tackle the social and economic issues facing the administration of justice or accessibility of laws. This led focus away from the Legal Wales project to technical and constitutional issues of jurisdiction.13 Himsworth offered an affirmative answer to the jurisdiction question by noting that a move to a legislative powers model would necessitate a separate jurisdiction.14 In his view, establishing a primary law-making institution without a corresponding legal jurisdiction would leave a “fatal gap”.15

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