England and Wales have shared the same legal system since the 1530s but despite this history, it is often suggested that the two should separate.
Is this romantic nationalism nostalgically harking back to the days of Hywel Dda – the medieval Welsh prince who codified a progressive legal system – or are there hard-headed reasons to divide the current legal system in two?
At present, the United Kingdom does not have a symmetrical system of devolution. Scotland, Northern Ireland and Wales all operate devolved systems on different bases – with Wales seriously lacking in law-making powers compared to the other two. In the aftermath of the Scottish vote on independence, there were renewed calls for equality in the nations’ devolved powers but as of yet, nothing has come to fruition.
In important legal respects Wales is the odd one out: it is the only one that does not have a separate legal jurisdiction. It also has a conferred powers system of devolution, meaning that it can only legislate in 21 subject areas where power has been given by the UK parliament. Under reserved powers models, the Scottish parliament and Northern Ireland assembly can legislate in any area unless they have been specifically reserved to Westminster.
Wales’s legal system however, is changing and changing fast. In 2011, following a referendum, the Welsh assembly acquired primary law-making powers that gave it power to legislate in 20 areas, including education and health, and there now exists a body of law that only applies to Wales that will increase over time. However, there is a yearning to have a clearer boundary between what is and is not devolved.
Equal devolution
Despite the fact that the Welsh Assembly has had these primary law-making powers for five years, the attorney-general has referred legislation to the Supreme Court – to rule whether it is within the assembly’s powers – a number of times. Similar procedures have yet to be invoked in relation to legislation from the Scottish Parliament or the Northern Ireland Assembly. This complexity in the Welsh devolutionary settlement threatens the unity of the UK if the governments in Westminster and Wales are going to have to continually slug it out in the courts.
The UK government’s solution to this problem was the draft Wales Bill which, though currently on hold, would, if enacted, give Wales a reserved powers model like Scotland and Northern Ireland. A good move in theory, but the bill still seeks to retain England and Wales as a single legal jurisdiction. It was greeted with a chorus of disapproval from politicians and academics alike, as it was felt that the bill increased, not diminished, the current level of complexity by reserving a long list of seemingly arbitrary powers to Westminster, and introducing a “necessity” test.
Since its first iteration, there have been some changes, but now that Stephen Crabb, the secretary of state for Wales, has moved on to his new role as welfare secretary, delays which have plagued the bill’s introduction could stretch even longer.
Alternative powers
There is another option: First Minister Carwyn Jones has put forward his own draft bill which, if enacted, would give both England and Wales separate legal systems from March 1 2026.
There has been a difference, to date, between the UK and Welsh governments in that the policy of the latter has been to work towards a separate legal system. The Welsh government’s draft bill proposes a third way and the buzz word now is “distinct” not “separate”. Distinct court systems for each of England and Wales would be created but initially their administration would remain a responsibility of the UK government.
The Supreme Court would still stand over both systems and a common judiciary would also be retained to serve both court systems interchangeably. Legal professionals currently qualified to practise in the single jurisdiction of England and Wales would continue to be able to do so.
But is any of this a good idea?
Not yet it isn’t. Everyone recognises that there has to be a transitional period; there are a plethora of issues to resolve, not least what will be done with cross-border agencies such as the National Probation Service.
In addition, finding law that is only applicable to Wales can be challenging to say the least. Law that applies in Wales can be restricted in its application only to the land, or it can apply throughout both England and Wales. On top of that, a particular legal rule could emanate from one of three rule-making bodies, in Brussels, Westminster or Cardiff Bay.
It does not assist access to justice if you need the skills of a particularly attentive law graduate in order to find which law applies to your particular situation. Thankfully, the cavalry, in the form of the Law Commission, has ridden to the rescue and is currently engaging in a project to make the law in Wales clearer, more up-to-date and easier to understand.
A distinct or separate legal system for Wales needs to be underpinned by legal texts and articles for the public, students and practitioners that assess developments in areas of devolved law. It can be hard to produce work of this nature on a commercial basis, and Wales will probably look at the example set by Northern Ireland – which has a patchwork quilt of public, private and charitable provision as well as a few good eggs, who keep the public and profession updated about developments.
Ultimately, a distinct arrangement for Wales is just facing up to the reality of what has already occurred. Once you have a devolved system, you want to make sure that judges are familiar with local conditions, otherwise confidence in the judiciary is undermined. They need to be mindful of the fact that not only the laws but the system of law-making in Wales is distinct and bilingual, with different underlying policy objectives. The extent to which you wish to encourage this development depends on whether or not it is properly planned along with your political attitude to devolution.