A Welsh system of justice, not a devolved English one

Peter Ainsworth

On Tuesday, 16 June 2026, the new constitution minister, Dafydd Trystan Davies, was asked when and how justice might be devolved. His answer was both everything and nothing: “justice should be fully devolved to Wales” … and there is “work to be done.”

The Thomas Commission concluded, six years earlier, that the people of Wales are being let down by the justice system in its current state, and recommended a Welsh legal jurisdiction.

With a Plaid government now in office and the question live in the Senedd chamber, the question is no longer whether Wales gets its own jurisdiction, but what sort of jurisdiction it gets.

What has been considered so far is mostly administrative in nature. The Thomas Commission’s blueprint includes a Welsh Justice Department, a dedicated Justice Minister, a Welsh High Court and Court of Appeal, and a legal profession regulated in Wales rather than from London.

None of that, on its own, touches the substance of the law that would be applied. Commercial law, contract, tort – the daily law most people and businesses actually encounter – would carry on much as it does now, just as Scotland’s and Northern Ireland’s commercial law remains closely aligned with England’s despite their having had separate courts for centuries.

Architecture matters. But it is not the same question as what the new institutions should actually be trying to do.

That question has become more urgent now that Westminster is once again considering assisted dying for England and Wales. Whatever one thinks of the policy, the constitutional fact is stark: the legal system would be asked to authorise decisions that end human life, often for people who are ill, frightened, dependent or exhausted. The safeguards may work – judges, commissioners, doctors and panels may act with real seriousness and care – but if they make a mistake, there is no remedy. The patient cannot appeal their own death.

The Magna Carta established that nobody was above the law, and in the centuries that followed, the king’s arbitrary power was stripped from the Crown and distributed to ministers, judges, officials, regulators, and managers of private bodies entrusted with public functions. But something was lost in that transfer, something essential to the healthy functioning of a modern state.

A king who governed badly faced a real and personal reckoning – at the most extreme, his own head was at stake. The people who inherited his power acquired none of that personal exposure. Separating power from responsibility is not a neutral piece of constitutional housekeeping. It creates small dictators: judges and others who can act, decide, reward and harm, with none of the personal stake that once came attached to authority.

Bring that lack of personal exposure to life and it looks like this: a judge who rules against you, wrongly, faces no consequences unless their conduct off the bench was a problem. A planning officer who refuses your application on a mistaken reading of policy keeps their salary and pension whether the mistake was reasonable or careless. A regulator who fines the wrong business, or licenses the wrong operator, moves on to the next file. Even where the wrong has been catastrophic and admitted, the pattern holds.

Years after the Post Office prosecuted hundreds of sub-postmasters on the strength of a faulty computer system, contributing to wrongful imprisonment and, by some accounts, suicides, the executives involved have not faced sanctions remotely commensurate with the harm done.

National pride

This is where Wales’s own legal past becomes more than an antiquarian curiosity. The medieval laws associated with Hywel Dda are often treated as a source of national pride and little else, which is understandable. They survive only in later manuscripts, none earlier than the second quarter of the thirteenth century, although they contain material of earlier origin, and they describe a vanished world of princes, kinship obligations and social rank that was hierarchical and often severe. They were the law of native Wales until the Statute of Rhuddlan in 1284 brought Wales under English criminal jurisdiction, although Welsh legal custom lingered in places for a further two and a half centuries before being finally extinguished by the Acts of Union under Henry VIII.

None of this should be romanticised into a claim that medieval Wales had a superior legal system, or a proto-constitution waiting to be rediscovered. But it preserved a legal imagination genuinely different from what we now have, in which authority was never merely power. It was an office carrying defined consequences.

That difference is visible in how the ancient lawbooks treat judges. If a litigant challenged a judge’s ruling, both sides had to provide pledges, and if the judge was defeated, the law was unambiguous:

Os methlir yr ynad llys, taled i’r brenin werth ei dafawd ac na farned byth [i]

“if the judge of the court be foiled, let him pay to the king the worth of his tongue, and let him never judge again.”

Symbolism

The symbolism is striking: the lawbooks fixed a value for the loss of body parts – eyes, for example – and here the fine was the value of the tongue, because that was the body part by which the judge exercised authority. The rule was not crudely anti-judge, though. If the challenger lost, he had to compensate the judge for the reputational harm of having wrongly challenged him, his sarhaed, as well as pay the king his tongue-worth – a reciprocal mechanism in which both sides had something to lose.

The lawbooks also place moral demands on judging. One passage lists among the ‘five keys’ of the judge’s office the need to despise riches, hate falsehood and love truth. Another warns the judge not to judge wrongly for wealth: “Let not the worth of a penny be more in thy sight than the worth of God.” Office, in other words, came with expectations and consequences.

It has not been possible to find any concrete historical examples of a Welsh judge actually paying the tongue-worth and losing their job. Certainly, the law prescribed the sanction; whether it was often enforced is a separate question the surviving sources do not answer. The point, however, is not what can be shown by example, it is the instinct set out in recorded manuscripts: that authority is an acceptance of responsibility, not merely a grant of power, and that a person should answer for it when their power is exercised badly.

What might this look like in practice? The old Welsh procedure cannot simply be copied, but it points to a practical principle. Judicial authority was not sealed inside a closed professional hierarchy: it could be challenged from below, and the challenge itself was made serious by pledges on both sides. The challenger had something to lose if the challenge failed; the judge had something to lose if the judgement was defeated. That is the element worth translating.

Ordinary citizens

In a modern Welsh system, the equivalent would not be another tribunal of fellow professionals reviewing process from above, but a route by which ordinary citizens could test the exercise of power from below. A citizen seriously harmed by a judge’s bad judgement or an official’s poor decision, after first persuading a lay panel that the claim was reasonable, could bring a civil claim against that individual, tried by a jury of ordinary citizens. This would be a genuine departure from the present arrangements, where most routes of complaint – ombudsmen, regulators, professional bodies – test whether the correct process was followed, not whether the underlying judgement or decision was right.

Yet it is through judgement and decision making, not process, that power is actually exercised. Had such a mechanism existed, the executives who pursued sub-postmasters through the courts might finally have answered for it personally. Judges or officials whose decisions are shown not merely to have turned out badly, but to have been made carelessly, recklessly or without proper regard to the evidence, would now face consequences appropriate to the harm their incompetence caused. In that respect, it would make today’s ‘small kings’ of the administrative state no different from the Welsh rulers of old: answerable, in the end, to those they governed.

Wales should not settle for an English legal system run by Welsh judges. It should build a Welsh legal system, run by the Welsh – one that asks, as the law of Hywel Dda once did, what power owes to those it is exercised over.