A leading member of a lobby group campaigning for a separate Welsh jurisdiction has claimed that divorce from England could dramatically improve access to justice in the country.
Barrister David Hughes, of 30 Park Place chambers in Cardiff, told a conference this week that sundering the ‘fused’ jurisdiction also offers ‘huge potential’ for lawyers in Wales, given the value of legal fees ‘repatriated’ to its bigger neighbour. But he stopped short of suggesting that Wales should have separate solicitor and barrister professions.
Instead, solicitors in England seeking to practise in Wales could pay a supplement on top of their existing PC fee, he said.
Hughes co-authored a pamphlet published last September by Welsh legal group Justice for Wales which put the case for a Welsh legal jurisdiction, and extensive devolution of the legal and justice system. He said the criticism that a separate jurisdiction for Wales would be prohibitively costly reflects the ‘lazy’ and ‘small “c” conservative’ debate on the future of the legal professions in a properly devolved system.
Hughes was addressing a Policy Forum for Wales seminar in Cardiff which took place against the backdrop of the troubled Wales Bill, currently passing through parliament. The bill promises new powers for the Welsh Assembly but some assembly member critics allege that it could actually result in a ‘roll-back’ of devolution.
In July a Plaid Cymru amendment proposing a separate legal jurisdiction was heavily defeated. In a Commons debate then, Torfaen MP and barrister Nick Thomas-Symonds warned that a separate jurisdiction would erect an ‘additional barrier’ to access to justice.
Hughes rebutted this argument. ‘The buildings are all here, the judges are all here. More is spent per head in England,’ said Hughes. ‘At the moment Wales is not gaining [in terms of] access to justice. SMEs in Wales are subsidising multi-million-pound litigation between oligarchs in London. That does nothing for the community in Wales – the fees are not coming back.’
A legally independent Wales would be able to do ‘imaginative’ things to enhance access, Hughes suggested, such as introduce a contingency legal aid fund. ‘Wales would not be a particularly small common law jurisdiction. If it were a US state, 20 [states] would be smaller,’ he added.
‘The problems of the Wales bill are largely to do with the mania for preserving a fused jurisdiction,’ said Hughes. ‘But the bill is a con. It is not a reserved powers model on any sensible understanding.. there is a presumption against competence in private law.
’Since our pamphlet came out the Assembly has come out in support of a separate jurisdiction and the Welsh government is using the arguments we put forward – both economic and constitutional.’
The event also heard from Fflur Jones, a solicitor at Darwin Gray in Cardiff. She said it was ‘disappointing’ that in a recent survey, two-third of practitioners in Wales questioned said they did not want a separate jurisdiction.
‘It got me thinking about the divergence between what’s happening on the ground and solicitor [attitudes],’ she said. ‘Is it about education or are lawyers risk-averse? We should look at this as a potential advantage not as a challenge or risk.’