“For Wales, see England” A Welsh Legal Jurisdiction? – Many lawyers still think so

The above quote, much reviled by those in Wales for centuries, is what you might find in the indices of an Encyclopedia Britannica if you looked up Wales. It reflected the one-sided union of England and Wales, who’ve shared the same legal jurisdiction since Henry VIII’s Acts of Union – nearly 500 years ago.

The debate about whether there should be a separate legal jurisdiction for Wales has rumbled on for some time. Plaid Cymru outlined its support for it in 2010, it was subject to consultations and an inquiry by the Welsh Government and National Assembly in 2012, and last year renewed support came in the form of a group of prominent Welsh lawyers called ‘Justice for Wales’.  In July, a Plaid Cymru amendment to a Bill proposing a wholly separate legal jurisdiction was heavily defeated in the Commons. Now, in its October report on the troubled Wales Bill, a Lords select committee on the constitution urged the recognition of the ‘growing body of distinct Welsh law’.

It’s clear the idea isn’t going away.

In September 2016, there were headlines of the first Welsh tax in 800 years, which is just one example of the increasing divergence between the law in England and Wales since devolution in 1999. At the moment, measures passed by the National Assembly that only apply to Wales are still part of the law of England and Wales, due to the united jurisdiction.  Creating a separate jurisdiction could mean creating a Welsh judiciary and courts system – meaning that cases relating to Welsh law could only be heard in Welsh courts.

Advocates of a separate jurisdiction believe that it will simplify devolution, making the existing body of Welsh law and its application more easily discernable, and will clarify what should be done when there is a conflict with English law. Scotland and Northern Ireland already have their own, separate, legal jurisdictions.  This means that laws passed by the Scottish Parliament or Northern Ireland Assembly have effect only within those jurisdictions.  Wales doesn’t, and that causes the confusion.  In no other country in the common law world does a territory with primary law making powers share a court system in the way that Wales does with England.

Barrister David Hughes, of 30 Park Place Chambers in Cardiff, one of the notable members of Justice for Wales, claims that separation also offers ‘huge potential’ for lawyers in Wales, given the value of legal fees ‘repatriated’ by England-based firms.  He also suggests that solicitors in England seeking to practice in Wales could pay a supplement on top of their SRA fee.  However, this idea is criticised by some as it may represent the beginning of the sort of split that Westminster wants to avoid, where lawyers would effectively be restricted to the jurisdiction into which they qualified.  If this did transpire, Welsh lawyers would be the ultimate losers because they would not be able to handle cases from across the border. Legal fees being repatriated across the border clearly goes both ways.

This question over jurisdiction is also one of the main reasons behind the continuing delay of the Wales Bill, as Westminster is keen to retain a single jurisdiction. Critics allege that the Bill could actually result in a ‘roll back’ of devolution, with David Hughes calling the Bill ‘a con’.

There doesn’t seem to be strong support for a separate jurisdiction in Wales, however, with two-thirds of practitioners in Wales favouring the united jurisdiction according to a recent survey.  Furthermore, the Welsh Government’s position is for a separate jurisdiction to develop naturally, as the National Assembly passes more Welsh legislation.

It is clear that the fissure is growing. While a separate jurisdiction seems logical and inevitable, a priority must surely be that the opportunities currently jointly available in England and Wales would continue following any split in jurisdiction. If the decision to create a separate legal jurisdiction for Wales is made, it should be made on logical grounds, and not on the sentimentalised desire to remove for good the old phrase: “For Wales, see England”.