Dedicated Welsh courts and judges with expertise in the law of Wales are needed to create a wholly separate jurisdiction from England. That is the uncompromising message of the Welsh government in evidence submitted today to the Commission on Justice in Wales.
The commission, established last year to review the justice system and policing in Wales, is chaired by former lord chief justice Lord Thomas of Cwmgiedd.
The 21-page document offers some comfort for solicitors who work cross-border, however, following suggestions that a separate jurisdiction could affect practice rights. ’There is no reason for Welsh practitioners to be excluded from the English legal jurisdiction and English law, and vice versa,’ it stresses. ’There is no intention to, and no need to, create unnecessary barriers.’
Indeed, the document speculates that larger Welsh firms will be able to market themselves as expert ‘English’ lawyers who also have experience of the law in Wales - partly because there will be little divergence in commercial law.
Whether devolution in Wales should be accompanied by the establishment of a wholly separate jurisdiction has long been a subject of fierce debate in Wales, including among lawyers. Speaking last year, first minister Carwyn Jones described the Commission on Justice in Wales as an ’important first step towards developing a distinctive justice system which is truly representative of Welsh needs’. Today’s evidence argues that the absence of a legal jurisdiction for Wales is a ’relic of history’ and that outstanding constitutional questions about justice and policing were fudged still further by the Wales Act 2017, which devolved more powers to Wales.
’It is no longer sensible to speak of the law of England and Wales,’ the document adds, pointing to significant divergence in areas such as the environment and housing.
’The existence of the single legal jurisdiction of England and Wales, and the associated reality that policing and justice are not devolved, is by far the single biggest remaining area of complexity of the Welsh devolution settlement,’ it stresses. Anomalies in the administration of justice include the fact that some tribunals are devolved, but no courts.