The case for a separate legal jurisdiction for Wales

Dr Huw Evans, lecturer in law, Cardiff Metropolitan University

Sir Robert Buckland MP (RB), former Justice Secretary in the UK Government, has said there should not be a separate legal jurisdiction for Wales.

This article argues that a separate legal jurisdiction for Wales should be established and that there are clear benefits rooted in the rule of law; specifically, regarding accessibility of the law. It would also improve the clarity of devolution arrangements.

Furthermore, the article argues that establishing a separate jurisdiction is not dependant on devolution of the justice system or on disentangling the court system that currently applies throughout England and Wales.

In an interview on 24 January 2024 on BBC Wales’s Politics Wales, RB said: “It would be a calamitous step for justice in Wales. We are a part of the jurisdiction of Wales and England, one of the most respected jurisdictions in the world.

“Our reputation for the rule of law, independence of our judges and our excellent legal profession as well, means that being part of a bigger entity is good for Wales…”

Although having a strong view, RB offered little (or no) reasoned argument in support of his assertions.

What is a legal jurisdiction?

The UK currently has three legal jurisdictions: England and Wales, Scotland, and Northern Ireland. But what does the term mean?

Williams argues that there are three common characteristics of a separate legal jurisdiction: a defined territory; a distinct body of law; and a structure of courts and legal institutions. (John Williams, ‘The emerging need for a Welsh jurisdiction: Reforming Welsh law’ (2010), 42 Agenda, 37-39). Those common characteristics apply to each UK legal jurisdiction.

As for Wales, there is a defined territory.  Second, although matters such as policing and justice are not currently devolved, it cannot seriously be argued that Wales does not have its own distinct body of law, and which is becoming ever more distinctive as the Senedd legislates.

Although one feature of a jurisdiction is a distinct body of law, there will always be areas where the law is the same across jurisdictions because under any devolved or federal system some law is retained at state level.

Third, although not exclusive to Wales, as it applies throughout England and Wales, there is a court system as seen, for example, with courts such as magistrates’ courts, the Crown Court, County Court and High Court.

Jones et al argue that, although it may be desirable, it is not necessary for establishing a jurisdiction to be conditional on a separate court system (Timothy H Jones, John H Turnbull and Jane M Williams, ‘The Law of Wales or the Law of England and Wales?’ (2005), 26 Statute Law Review, 135-145).  Although a court system is a feature of a legal jurisdiction, it is also conceptually possible for that system to cover more than one legal jurisdiction.

It follows that, within the court system of England and Wales, the law in Wales could be applied in a Wales jurisdiction and the law in England in an England jurisdiction.  

Thus, Jones et al assert, as Wales is a defined territory and has its own distinct body of law it could be recognised as a legal jurisdiction.

So, separate jurisdictions could be established now for Wales and England without disentangling the current court system.

This, also, does not prevent later disentanglement establishing separate court systems for Wales and England.

England and Wales legal jurisdiction: practical manifestation

There is a convention to include an ‘Extent’ section in UK Acts of Parliament which states the legal jurisdiction(s) in which the legislation applies. To use the legal language, law extends to a legal jurisdiction but where its effect is restricted in geographical terms within that jurisdiction, the law is described as applying in that geographical area. Therefore, Senedd legislation extends to England and Wales but applies only in Wales.

Unlike the ‘Extent’ convention, there is no equivalent convention setting out the ‘application’ of legislation. Sometimes this will not be a problem, such as with Senedd legislation; it can only apply in Wales. But it may not be obvious: for example, where UK Government legislation applies only in England in a devolved area.

Social care

As an example, social care is an area which can be problematic, as regard must be had to the law that applies in Wales, in England, and in both Wales and England.

For Wales, care and support for adults and children, and support for carers, is under the Social Services and Well-being (Wales) Act 2014 (SSWBA14). The SSWBA14 establishes a statutory framework for assessing and meeting the needs of adults, children and carers. In England, the parallel framework is established under the Care Act 2014 (CA14) for adults and carers and the Children Act 1989 (CA89) for children.

So, there are two statutory frameworks that apply in the legal jurisdiction: one in Wales and one in England.

But to complicate matters further, child protection is found in the CA89 and applies in both England and Wales; this covers such things as care orders. Therefore, a child taken into care in England or Wales will be taken under the CA89. But any assessment to meet the child’s care and support needs will be under the SSWBA14 if the child is in Wales, or under the CA89 Act if the child is in England.

If a person refers directly to the legislation, it can be possible to work out which law is applicable and where. But that can take time and also presupposes that the person knows where to look.

The broader point is that a single legal jurisdiction with differential law is a recipe for confusion. For example, in the author’s experience misconceptions include assuming that the CA14 applies in Wales, or that the CA89 applies in Wales concerning assessment of a child’s need for care and support.

Accessibility of law

Separate legal jurisdictions for England and Wales would provide for greater clarity. The law in Wales could be found in one place, disentangled from the law in England, as is the case with the law in Scotland and in Northern Ireland.

In that event, the law in Wales could be ordered separately, to facilitate greater transparency and access. It would no longer be necessary to look at legislation to decide which parts applied in Wales, in England, or in England and Wales, before then moving on to consider the legal content.

The process of improving accessibility of the law in Wales has already begun. The Law Commission for England and Wales in 2016 published Form and Accessibility of the Law Applicable in Wales concerning a programme of consolidation and codification of Welsh  law. The Welsh Government promoted the Legislation (Wales) Act 2019 under which the Counsel General has a duty to keep the accessibility of Welsh law under review (section 1).

This is welcome work, but a separate jurisdiction would progress matters.

Accessibility and the rule of law

In his seminal work The Rule of Law, Tom Bingham identified accessibility as a core element for the rule of law to be effective. He gave three reasons: that people know the criminal law; that people know their civil rights and obligations; and for economic health to be promoted through accessible legal rules that apply to commercial transactions (Penguin, 2011, 37-38).

The current jurisdiction of England and Wales frustrates making law as accessible as it should be. Formal recognition of a separate jurisdiction would significantly improve accessibility. That decision, however, is a political one, and for the UK Government. But the case must be made.

And finally…

Let us return to what RB said. His implicit assertion was that it would not be good for the rule of law, judicial independence, or the legal profession.

This article argues the opposite concerning the rule of law as accessibility would be improved, as would the overall clarity of devolution arrangements.

It is unclear how judicial independence would be adversely affected. A Welsh legal jurisdiction would be part of the UK legal system and subject to higher court review.

The reputation of the legal profession is more likely to improve if Welsh law is more accessible and practitioners specialise more in Welsh law.

And why does RB think that being part of a bigger entity is good for Wales? The opposite arises because of the legal confusion created.