Welsh case for legal autonomy opened


by James Aitken, Law and Legal Affairs Editor

It has until recently been taken as read that there are three legal jurisdictions in the UK.  Scotland, which has a number of laws quite distinct from the other two, Northern Ireland which for the most part is similar to that of England and Wales, and England and Wales.  The law of England and Wales for the most part also applies to UK wide matters such as company and tax law.

That, though, may be about to change as the body of Welsh law increases.  In the recent referendum in Wales a clear majority voted to extend the Assembly’s law-making powers in the 20 devolved areas.  That means when the changes are implemented the Assembly can pass laws without first having to gain the consent of Westminster.  A completely separate legal system would of course mean Wales, just like Scotland, having its own Law Society, legal qualifications and Judges.  I suspect that is still some way off but it is nonetheless clear that this is the direction in which Wales is moving.

The Welsh Assembly has already started building a body of law with a distinctive Welsh flavour, despite the tortuous process put in place that required the Assembly first to seek approval from Westminster.  Among the differences with England is the Welsh Language Measure (Act), which requires public bodies and some private companies to provide services in Welsh.  Other potential differences have included the UK’s first NHS redress scheme, which will cover clinical negligence claims under £40,000, a plastic bag levy and a ‘soft opt-out’ scheme for organ donation.  

In addition, Wales is developing its own legal personality.  Practitioners praise the support of the judiciary in enabling Welsh matters to be dealt with in Wales, in Welsh if preferred, and as locally as possible.  Lloyd Jones, a member of the standing committee of Legal Wales, a concept which started with devolution in 1998, was recently quoted in the Law Society Gazette: “Wales now has its own circuit with its own ‘Trinity’ of mercantile, civil and chancery judges, two presiders who cover the whole of Wales plus a family division liaison judge.  We have to be careful that the referendum isn’t seen as a linguistic, nationalist issue.  It is not.  It is an evolutionary process and the referendum is the next natural stage in the process.”

Peter Davies, chair of Cardiff Law Society, said in the same article:  “Wales’s border with England is just ‘too porous’ for it to become a separate jurisdiction.  However, if you have laws initiated in Wales, it brings the role of judges into focus.  The lord chief justice of England and Wales advises the government on the impact of laws on the judicial system.  We could have a situation where the presiding judge for Wales finds himself more in that role to reflect the distinctive nature of Welsh law.  Will the lord chief devolve part of his role to the presiding judge?  This could have the potential for a Welsh judiciary to emerge.”

Robin ap Cynan, a family mediator and chair of the Law Society’s Wales committee, said that: “Politicians would regard a “no” vote as an absolute slap in the face.  I think the legal profession would also be disappointed because I suspect it is proud that Wales is developing its own legal personality.”

These quotes show that the debate is just beginning.  That, though, is not the most important point.  What is most important is that such a debate is actually happening.