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Opinion

The case for a separate legal jurisdiction for Wales

02 Apr 2024 7 minute read
Justice picture by Pixabay

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.


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Annibendod
Annibendod
8 days ago

Oppenents of Wales exercise of its own capacities in the various areas of governance often trot out the “we’re part of something bigger” line. Is no one else curious that the Venn Diagram which compares such people with Brexit supporters appears to almost be a pair of completely overlapping circles?

You plonker Robert!

Y Cymro
Y Cymro
7 days ago

Wales is the only part of the UK that does not control it’s own criminal justice system. It’s not only undemocratic but unsustainable that those who argue Wales should not control it’s own policing criminal & youth justice systems are the same who say Ukraine has the right to sovereignty & democracy. Those Conservatives & champagne socialists who argued “let’s take back control” when it came to Brexit but would deny Wales the same luxury. Hypocrites the lot of them; This is nothing, absolutely nothing, to do with Welsh independence, because England, Scotland & Northern Ireland control their own separate… Read more »

Dai Ponty
Dai Ponty
7 days ago
Reply to  Y Cymro

We might have a Government of a sort but the truth is Westminster still pulling our bloody strings unlike Scotland and Northern Ireland but i would PREFER TO BE TOTALLY GOVERNED BY OURSELVES BEING INDEPENDENT

Nia James
Nia James
7 days ago

An excellent article.

Rob
Rob
7 days ago

Quote: 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.

I bet every country will say the same thing about their respective jurisdiction. ‘Oh ours is the most respected in the world’. What is good enough for England isn’t necessarily good enough for Wales. We are not a second class nation.

David Pearn
David Pearn
7 days ago

It really winds me up when news programme’s always refer to Wales, as england and Wales when it comes to policing, the prison service the laws, always bloody england and Wales even the weather usually mentions england and Wales. For goodness sake let us have our own identity 😠.

Dafydd
Dafydd
7 days ago
Reply to  David Pearn

With you all the way! That phrase boils my urine!

Ernie The Smallholder
Ernie The Smallholder
7 days ago

Opponents of Wales exercise of its own capacities in the various areas of governance often trot out the “we’re part of something bigger” line. Yes, That is the one of the same arguments that Putin used when he his launched his invasion of the Ukraine. Putin thinks that the Ukraine should be part of Russia – the same as UK (the English government) thinks that Wales is part of its country. This is imperialism. Wales, Scotland, Ireland and England would all be better as independent countries in their own right and cooperating together as part of a larger European confederation… Read more »

Dafydd
Dafydd
7 days ago

… yes and against a backround of evidence that clearly demonstrates that we are definitely not better off as part of a larger ‘E&W’ entity! Their lack of investment in public services and their rabid ‘private enterprise at all costs’ ethos, they’ve set a rot that is now seeing the very fabric of the British state dissintegrate. Perhaps thats not a bad thing ….

Annibendod
Annibendod
6 days ago
Reply to  Dafydd

What gets to me is the Left’s Unionist apologetics. The claim wrt the UK is that it is a “Collectivist” enterprise. At best this is wishful thinking.The UK is an imperialist venture, the vehicle of political and economic hegemony of the capitalist class. As such we are justified in calling it “the Tory State”.

Jonathan Edwards
Jonathan Edwards
6 days ago

‘Clarity of devolution arrangements’? Dr.Huws is talking about the fact that Wales does control some aspects of some of the law which applies in Wales. We can handle snippets which differ from Englandandwales, the real jurisdiction. He wants more and so do I: the same rights as an American State, or a Dominion from the early days of the British Commonwealth. This would put us miles ahead of where we are now. And would be a necessary stepping stone to full Indy. But Wales has not mustered the political force to give Dr.Huws (or me) what’s needed. Welsh reboot needed,… Read more »

Gareth
Gareth
6 days ago

God please don’t give the clowns in the Welsh government anymore power. I don’t like what they have done to date and if they had more power we will for sure have stupid censorship laws like the ones brought out in Scotland and Ireland or even a 10 mile an hour speed limit. We already have a first minister taking suspicious payments from convicted fraudsters and he hasn’t been in the job 2 minutes. I wish we had stayed being governed by one set of clowns in London, instead we are run by 2 sets of lying clowns

Gareth
Gareth
5 days ago
Reply to  Gareth

You may be happy being a ” subject of his majesty” and put up with the likes of Johnson, Truss and Sunak clowns is being kind to them , but we can affect change by voting out Labour in the Senedd while we have devolution, without it we are at the whim of the Tory catastrophe that has gripped Britain for 14 years, and no matter how we vote in Westminster elections, we get what England wants. We need independence and with it all the powers every self respecting nation have.

Last edited 5 days ago by Gareth
Gareth
Gareth
5 days ago
Reply to  Gareth

I agree they are a bunch of clowns in Westminster and I would rather not be run by them but my opinion is that they are a bunch of clowns, in the senedd too and i would rather be run by one bunch of clowns even if they are in England. Unfortunately I don’t think Labour will be voted out in Wales as its my belief that alot of people in Wales are still voting for Labour because Maggie thatcher closed the coal mines decades ago. In a perfect world yes we would be run by Welsh people but my… Read more »

Annibendod
Annibendod
5 days ago
Reply to  Gareth

You sound like you’re resigned to defeat. I’m going to keep fighting for a functional Welsh Democracy well governed. That’s what we need. Never going to stop till we get it or I’m dead.

Rob
Rob
4 days ago
Reply to  Gareth

So your argument is because the Welsh people don’t vote the way you want them to vote then they should be governed from England? South Africa has had the ANC for 30 years, should they be stripped of their sovereignty?
The reason why Labour have been so dominant in Wales is because they have taken advantage of the weakness of the Welsh media portraying themselves as the ‘party that stands up for Wales’ at the expense of Plaid Cymru. A weak devolution settlement merely strengthens their hegemony, not challenging it. Wales needs is a stronger media platform.

Gareth
Gareth
4 days ago
Reply to  Rob

My point was not that people don’t vote how I want, it was that I think that certain parts of Wales vote based on historical decisions made like the closing of the mines in the 80’s, So even if the tories had better policies some people could never bring themselves to vote for them. It’s not that I want to be run from England, im saying it doesn’t matter which party is in power nor does it matter where the government is located. I’m saying any polition in a position of significant power will not make the best decisions for… Read more »

PeterC
PeterC
2 days ago
Reply to  Gareth

For goodness sake, mines were starting to close in the 70’s because they were uneconomic. Maggie merely recognised and perhaps accelerated it but regardless they would have eventually gone. Any surviving now would be facing closure due to the antics of the climate change zealots and “Extra Rediculous”. It was all a long time ago, many carrying the torch about closing of mines were not even born then. Time to move on

Gareth
Gareth
1 day ago
Reply to  PeterC

I totally agree with you, but unfortunately when you speak to people from these areas of Wales it becomes clear the majority of people would never vote for the conservatives no matter what the policies are.

adrian savill
adrian savill
5 days ago

Ethyrgl gwych

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