The new legal head of the Welsh government has insisted that the stalled justice devolution is back on the table – but said any changes will not negatively affect lawyers practising either side of the Wales-England border.
Elfyn Llwyd, who took over as counsel general in May after Plaid Cymru’s in the Welsh Government election, said that the first minister of Wales and UK prime minister Andy Burnham had already had ‘several discussions’ about developing a separate jurisdiction.
‘The door is open,’ Llwyd told the Legal Wales conference in Cardiff on Friday. ‘The sooner we have a proper engagement on this subject the better. I believe that things have changed rapidly since May – this subject is now a priority of the present government.’
The case for a separate jurisdiction is based on the growing distinct body of Welsh law. Last month a Law Society practice note on the differences found that Wales-specific legislation applies across whole areas of devolved policy-making, including housing, health and education and planning.
In 2019 a commission chaired by former lord chief justice Lord Thomas of Cwmgiedd recommended that Wales should wrest full control of justice policy and funding.
However a report earlier this year by Dr Robert Jones, lecturer in the Welsh criminal justice system in Cardiff University’s School of Law and Politics, found that only three of the Thomas commission's 78 recommendations had been acted upon. The Labour-led Welsh government had done ‘almost nothing to shift the dial on justice devolution to Wales’, he said.
Lord Thomas himself, appearing at the Legal Wales conference, a sense remains in Westminster that the people of Wales were ‘not up to it’ and that the most capable people had left the country. He added: ‘It is right to record that although we had wonderful cooperation from the ministry [of justice] in London and civil servants, the government [in 2019] was a body with which there was no engagement at all. We had several meetings with the Labour MPs and it would be fair to say they were not enthusiastic about taking away [justice] functions.’
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Llywd, in his first major speech since coming to office, sought to reassure lawyers in Wales that devolution would not mean extra administrative burdens or result in their exclusion from working in England. He revealed that the government intended to bring forwards a Tribunals Bill early in the parliament which will lay the foundations for a ‘more coherent, modern and distinctly Welsh tribunal system’.
This will include the creation of an appeal tribunal and in time the creation of Wales’ own courts and tribunal service.
He added: ‘Let me be clear though that in talking about Welsh judges, I am not for one second talking about cutting loose our existing judiciary and recruiting a whole new set of judges for Wales.
‘Existing judges in the England and Wales jurisdiction would be automatically passported in so that they were able to sit as Welsh judges. Changing the title is, right now, of symbolic more than practical importance – although as law continues to diverge, the more essential it will be that judges are appointed with reference to knowledge and understanding of Welsh law.’
The same logic, he explained, would apply to lawyers practising in Welsh courts.
‘We do not, currently, need separate qualification routes for lawyers in Wales, or separate regulators, or separate CPD requirements – as long as the current regulators continue to properly reflect Welsh difference in all of those areas. Whatever side of the border you live on, you should continue to be able to practice on both sides of the border with a single qualification. Formally recognising the law in Wales as Welsh law need not, and should not, change this.’
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