John Osmond reports on an important speech flagging up the next stage in Wales’s devolution journey

November 18th, 2012

The Welsh Government is moving towards recommending to the Silk Commission that a separate jurisdiction should be created for Wales. This direction of travel was set out by the Counsel General Theodore Huckle QC in an important speech to the Society of Legal Scholars at Cardiff Law School last Thursday and published in full here.

The Silk Commission will be publishing its first report on its enhancing the fiscal and borrowing powers of the National Assembly tomorrow. It is widely expected that it will recommend that the Assembly acquire significant tax varying powers, possibly over the whole of income tax collected in Wales, but only by the year 2020 at the earliest and only after two substantial hurdles have been surmounted: a two-thirds majority vote in the Assembly, followed by a referendum.

Silk Commission Special 1

Tomorrow, on the day the Silk Commission launches its first report, Richard Wyn Jones and Roger Scully reject its arguments for a referendum on devolving taxes to the National Assembly.A week tomorrow, on Monday 26 November, a major conference on the Silk Commission’s recommendations Taxation and Borrowing Powers for Wales is being organised by the Changing Union project, a partnership between the IWA, the Wales Governance Centre at Cardiff University and Cymru Yfory/Tomorrow’s Wales. Keynote speakers include: Paul Silk, Chair of the Commission on Devolution in Wales; Jane Hutt, Finance Minister, Welsh Government; Baroness Randerson, Under-Secretary of State at the Wales Office; and Gerald Holtham, Chair of the Holtham Commission. Full details of the conference and how to attend are here

The second phase of the Commission’s work, which will take the best part of another year, will be to examine:These hurdles have been agreed by the cross-party Commission mainly to assuage the doubts of the Labour representative, former Finance Minister Sue Essex. She has now stepped down from the Commission and it will be announced tomorrow that she has been replaced by former Environment Minister Jane Davidson.

Whether the powers of the National Assembly should be increased.

How they should be expressed in statute – that is to say, whether they should remain as present as conferred powers, specifically set out in Schedule 7 of the 2006 Wales Act; or, whether we should move to the Scottish mode of reserved powers in which everything is devolved save matters, such as defence and foreign affairs, which are set out in legislation as still remaining with Westminster.

Whether a separate jurisdiction should be created for Wales, as is the case with Scotland and Northern Ireland.

The capacity of the Assembly to cope with the legislative workload and scrutinise the Welsh Government effectively

In a speech at the London School of Economics a week ago (here) the First Minister argued strongly for Wales to move to the reserved powers model. Now it appears that as well as being a simpler and clearer system, this is, also to clear the way for creating a distinctive jurisdiction.

It was noteworthy, however, that in his speech Theodore Huckle argued that a separate jurisdiction need not necessarily follow on from establishing a reserved powers model for Wales. This he said, need to be argued for on its own merits. However, in making this case Huckle effectively contradicted both Peter Hain and Rhodri Morgan. At the time of the passing of the 2006 Wales Act, when they were respectively Secretary of State for Wales and First Minister, they argued that Wales could not be granted the reserved powers model precisely because that would necessitate the creation of a separate jurisdiction, and that would be a step too far.

In Wales devolution journey it seems the goalposts can be constantly moved. Back in 1973, for example the Commission on the Constitution argued that Wales could not have legislative powers because it did not have its own separate jurisdiction.  Now, because we have acquired primary powers, the case is being made that we need a jurisdiction.

In his speech Theodore Huckle suggests that for a separate legal jurisdiction we need to have the following institutional machinery in place:

A judiciary Welsh court structure

A Judicial Appointments Commission

A Courts and tribunals Administration Service

A Law Commission

A judicial training board

Taken together this structure illustrates that creating a jurisdiction is no small matter. In addition in his lecture Theodore Huckle examines the case for devolving responsibility for policing and criminal justice, including the Crown prosecution Service, criminal courts, sentencing, the probation service, the prison service and youth service.

He said that to add these responsibilities to the Welsh Government’s workload would arguably represent the biggest devolution step for Wales since the National Assembly was created in in 1999. There would, he said, be great advantages in taking the step:

“Each part of the UK has its own unique challenges to face in relation to crime, and these are dictated by a number of factors such as population density, terrain, cultural trends, the structure and organisation of police forces, and many others. By maintaining powers over policing and criminal justice at a more local level, it can be easier for devolved administrations to promote and encourage efficiencies through a restructuring of administrative services within their territorial boundaries while focusing on tackling the crimes which most greatly affect their communities.”

Set against this were concerns about cost and capacity:

Can we afford to do this, and can we be confident, with the resources we can deploy, that the quality of service provided for people in Wales can be maintained or enhanced?

“… The answer to these questions is crucial to the related, but separate, question as to a separate legal jurisdiction. If, for whatever reason, the Welsh Government cannot at present move forward with proposals for taking on Policing and Justice responsibilities, the case for a separate legal jurisdiction may be considerably weakened. It would be of limited or even dubious worth pursuing a separate legal jurisdiction ‘in principle’ if Welsh Ministers and the Assembly did not also obtain a reasonably full set of powers in relation to Justice.”

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John Osmond is Director of the IWA.

4 Responses to:“Welsh Government leans towards legal jurisdiction”

  1. Jacques Protic says:

    In Saturday’s leading article (The Six Key Numbers of Welsh Politics) your author looked at some uncomfortable aspects how Wales got to being a partly devolved principality. In the same article Roger Scully recognises the fact that at present only 10% of Welsh population seeks or wants significant independence which includes, though not mentioned, a separate legal jurisdiction for Wales.

    In my opinion Roger failed to recognise some other significant issues in Wales especially the fact that Wales is a divided ‘nation’ by language and culture or to see that the two sectors of contemporary Wales have distinct and separate vision for Wales and its future.

    Legal jurisdiction article simply confirms what most people already know which is that the Welsh Labour Government represents the vociferous Welsh minority whose vision of Wales is nothing other than a separate Welsh language speaking nation with little or no tolerance for the English speaking majority and their British culture and values.

    Carwyn Jones is carrying on relentlessly the ‘Welsh vision of a Bilingual nation’ as started and partly created by Rhodri Morgan and Carwyn needs a long overdue reality check as there is overwhelming evidence in the public domain that Rhodri’s and Carwyn’s aspirations for Wales are nothing other than a ‘national disaster’ and the state of Welsh economy, education and virtually everything else that Welsh Government controls is crumbling around them, for those very reasons, which is small minded nationalism.

    Carwyn should also recognise a simple but a crucial fact that more than a third of Welsh population lives within few miles of English borders where most of the Welsh economic prosperity is derived from and where most of people live their lives with little or no interest in the Welsh Assembly Government or see it as relevant at present.

    This will dramatically change when the current and largely unaffected population realises that they no longer have freedoms that they took for granted and nothing more would drive this point home than the separate legal jurisdiction for Wales.

    In border counties and further West most people rely heavily on England for ‘legal brains’ and legal support being it the use of Solicitors or Barristers to assist with whatever case they may have. Just imagine that we end up with a legal system based on the Scottish example and where overnight we would no longer be able to seek help and assistance from England based legal profession – In my view we would have a revolution and break up of Wales as we know it now.

    (Report comment)

  2. Paul Roberts says:

    “the state of Welsh economy… that Welsh Government controls”.
    How does the WG control the Welsh economy when it belongs to English currency, prints no money, has no bank of Wales, does not set the interest or foreign exchange rates and doesn’t raise income tax or borrow? Wales is in charge of spending its allowance, but it is not in charge of, or any part of, the family income.

    (Report comment)

  3. Tredwyn says:

    No member of the Welsh Cabinet except Carwyn is a Welsh speaker. The great majority of AMs do not speak Welsh and are elected by English-speaking voters. The only Welsh speaker in the top ten civil servants has just quit. Indeed of those ten only two are Welsh of any kind; the others are Scots or English. This is a country whose few powers are exercised overwhelmingly by English or English-speaking people. Yet Jacques Protic believes they are engaged in conspiracy to create a Welsh-speaking state. For heavens sake consult a psychiatrist. Paranoia can be treatable.

    (Report comment)

  4. Jacques Protic says:

    Tredwyn, For my part I would never consider personal insults as an appropriate tool in any context and especially in a forum where it’s generally expected to create intellectually challenging debates and perhaps your cause would be better served if you can stick to the points at issue and related facts.

    Yes, I have a big problem with Welsh Assembly Government and especially their linguistic policies as I happen to be a parent of two young children whose education is being damaged by the Welsh language imposition and the same can be said for the vast majority of other children in Welsh education.

    To illustrate, my 8 year old child is in a Conwy LEA primary school defined as English Medium teaching establishment and in a community which contains less than 10% of Welsh speakers, but all school teachers in my child’s school just happen to be fully capable of delivering Welsh Language Curriculum which is a ‘surprising coincident’!?

    The school defines Welsh language exposure as MINIMUM 25% of the available teaching time but in practice this means 50% +. My child and all her little mates can’t put together a single sentence in Welsh and have no interest in the language but my child is struggling with numeracy and English language literacy which I feel is a horrendous indictment of a social engineering process imposed by WAG in education of our young children.

    Whilst I feel your comment is largely outside the scope of the principal article, but yes you are right and there is an English speaking majority in the Welsh Senate but none of the English speaking AM’s had the guts to stand up to Rhodri Morgan and question the implications behind the ‘Road to Bilingual Wales’!?

    Carwyn Jones carries on Rhodri’s legacy with unrelenting determination and aided by an English speaking ‘quisling’ in the shape of Leighton Andrews. Leighton is not only damaging education but he is also damaging Welsh economy and dragging Wales backwards and into third world domain (Whilst on Leighton he is not satisfied with just harming education but he is in the process of revising Welsh history to make all our children ‘more Welsh’ – Mind Boggles!

    My initial view points were relative to legal jurisdiction that WAG is seeking by stealth and all I did was to remind Carwyn and others of some practical realities that should not be ignored.

    Finally what I stand for is freedom of choice and for people of Wales to be able to live and work here irrespective whether the speak Welsh or English or both, but above all I want parental choices to be sacrosanct in choosing Welsh Medium or English Medium education for their children.

    (Report comment)

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