Twenty years after the 1997 devolution referendum in Wales, the First Minister Carwyn Jones AM announced the establishment of the Commission on Justice in Wales to be chaired by the former Lord Chief Justice, Lord Thomas of Cwmgïedd. The Commission is currently reviewing the operation of the justice system in Wales, the creation of a legal jurisdiction for Wales and the future of the legal sector. I recently submitted evidence to the Commission which addresses a number of concerns, including obstacles to the accessibility and clarity of the law in Wales, the distorting effects in Wales of a shared single legal jurisdiction for England and Wales, and the adverse impact on seamless public and preventative service delivery in Wales that results from the justice system not being devolved.
The current landscape
The gradual and fragmented way in which Wales’ system of devolved government has developed has led to a system which is complicated and unclear. That has been exacerbated by the existence of a shared jurisdiction. In seeking to preserve its unity, the United Kingdom government has resisted rational constitutional arrangements.
Complex constitutional arrangements lead to overly complicated laws. This is not a niche academic point. It is about how laws are made and about how they are accessed, which goes to the heart of the rule of law and to accessing justice, not least as legal aid and access to representation is withdrawn following UK Government policies. If we can’t easily find our rights and responsibilities, they are less effective in protecting us and others.
And seeking to preserve the supposed unity of the jurisdiction is like shutting the stable door after the horse has bolted. One of the main purposes of a legal jurisdiction is to demarcate the consistent application of a single body of law. This is no longer true of the unified England and Wales jurisdiction.
The law that applies to Wales and the law that applies to England is becoming increasingly different, as a result of devolution. A single legal jurisdiction is not designed to deal with divergence – it is designed to deal with uniformity. But our laws will continue to diverge, which means the single jurisdiction is no longer fit for purpose.
And a common jurisdiction has, it could be said, dictated a common policing and justice system - itself a major barrier to safer, fairer communities in Wales. There is a growing awareness of the need to integrate mental health, housing support, and other public services with the justice and penal system to ensure better outcomes for victims, offenders and for society at large. That cannot happen when the boundary for what is devolved and what is not cuts through right through the middle of these public services.
What should the future look like?
The Commission on Justice is exploring the proposal to divide the existing legal system into two distinct jurisdictions, one for England and one for Wales. In this scenario, we would have a formal body of Welsh law, courts which sit as Welsh courts and decide Welsh cases. Similarly, this would also create, notwithstanding the common usage, a formal body of truly English law and English courts. But crucially also the Commission is looking at the numerous problems faced by the justice system as a whole. It is considering the obvious synergies which exist between those public services that are already devolved such as health, social services and housing, and those that are currently not, such as policing and justice - and the practical tensions created by placing the boundary of devolution where it is now.
The Welsh Government is clear that a Welsh legal jurisdiction should be created to the benefit of both England and Wales, and that policing and justice-related matters should be devolved. It is time to rationalise our jurisdiction and governance arrangements - to complete the devolution process and create a stable and coherent system of government for Wales. One that facilitates efficient and effective delivery of services to people in Wales.
There’s nothing to fear …
Changes of this sort naturally elicit some concern. But this is not new in the United Kingdom. In Scotland, Scots law in devolved areas diverges from English law, while in those subject areas reserved to Westminster, where the United Kingdom Parliament legislates to change Scots law, (as it does into the laws of England and Wales), the laws across, England, Scotland and Wales are aligned. And the laws of Scotland are applied in Scottish courts –in both devolved and reserved subject areas.
The jurisdictions co-exist very happily. But in visiting Welsh law firms over the last few months, I know some are concerned about how a Welsh legal jurisdiction could affect Welsh lawyers. I don’t believe they should be concerned. Common legal education, automatic dual qualification, and cross-ticketing of judges and tribunal members are all solutions that will facilitate lawyers and litigants operating smoothly in two jurisdictions, rather than one common jurisdiction. And change will not happen for change’s sake.
I am also aware that larger commercially focused law firms in Wales generate a large proportion of their work from outside Wales. But there is no reason why creating a Welsh jurisdiction should be a barrier to this market. I have no doubt that Welsh firms will benefit from being ‘English’ common lawyers, while at the same time having specialist knowledge of and qualification to practice the law of Wales.
Indeed, creating a distinctly Welsh jurisdiction would enable us to develop arrangements which not only are as effective as the current arrangements, but would be even more effective in addressing the specific needs of individuals, businesses and organisations living and operating in Wales.
Devolution is the settled will of the Welsh people and it is clear that the people of Wales desire an effective Parliament and Government able always to act in their best interests. But to fully achieve this, the powers devolved must be less constrained and crucially, be more coherently delineated. The Welsh Government proposal is a sensible, practical solution to a number of issues, rather than a radical upheaval. It is now a case of when and not if this will happen.
Jeremy Miles AM is counsel general for Wales.