An interesting, if not entirely unexpected, feature of the Welsh Government’s evidence to the Silk Commission published last week is that it puts the case for a so-called “reserved powers” model of law-making for the Assembly, but shies away from calling for a distinct Welsh legal jurisdiction.
Some commentators have raised the question of whether it is possible to have the one without the other. Indeed, in the run-up to passing the Government of Wales Act 2006, in a joint Memorandum to the Welsh Affairs Committee, Rhodri Morgan and Peter Hain explained that a ‘conferred powers’ as opposed to a ‘reserved powers’ model of legislative devolution was appropriate to Wales precisely because England and Wales is (and implicitly should remain) a single jurisdiction.
The link between separate laws and a separate jurisdiction is made explicit in that Memorandum in the following passage:
“If the Assembly had the same general power to legislate as the Scottish Parliament then the consequences for the unity of the England and Wales legal jurisdiction would be considerable. The courts would, as time went by, be increasingly called upon to apply fundamentally different basic principles of law and rules of law of general application which were different in Wales from those which applied in England. The practical consequence would be the need for different systems of legal education, different sets of judges and lawyers and different courts. England and Wales would become separate legal jurisdictions.”
The problem with this analysis is that “basic principles of law and rules of general application” are not immune from being changed within the conferred powers model. Indeed, as I explained in a previous article on ClickonWales last October (here), they may be susceptible to more radical treatment in certain contexts under the conferred powers model. The law in England has diverged, and will continue to diverge, from that in Wales, as much by the UK Parliament legislating differently for England as by the Welsh Assembly legislating differently for Wales.
Jurisdiction means different things to different people. For many academics, the distinguishing features of a separate jurisdiction are a distinct body of laws, a distinct territory and a distinct system of courts and legal institutions. Wales already has the first two, and in many respects has the third, so how come we can’t say that Wales already has a distinct jurisdiction?
The reason is rather obvious, if we use the word ‘jurisdiction’ in the practical sense in which it is used in the UK constitutional arrangements – that is, a system of courts which has exclusive power to determine cases arising within a particular territory. So there are three UK Jurisdictions – Scotland, Northern Ireland and ‘England and Wales’. Each has its own judges and court system. Such a system of courts with exclusive powers to determine cases on a territorial basis (and having no, or only limited, reach outside their territory) cannot ‘emerge’ from nowhere. It needs to be recognised and accepted in law. In the context of Wales, that would mean an Act of Parliament creating such a system, and delineating its powers and institutions, in much the same way as was done for Northern Ireland in the early years of the last century.
It seems that the Welsh Government’s line is that it is not yet the right time to put such a system in place, but this should not hold back the reserved powers model. On the other hand, since the Welsh Government does not envisage a reserved powers model from being in place for eight years, things might change.
So how would Wales cope with a reserved powers model but no separate jurisdiction? One imagines that it would do so, at least to begin with, pretty much as it has done under the present arrangements. The Government of Wales Act 2006 squares the circle by providing that while Assembly Acts can relate only to Wales, they can extend only to England and Wales.
This rather opaque formulation means (among other things) that Assembly Acts can be enforced in England. As a result, courts in England can hear cases which involve questions of Welsh law only. So if, for instance, the Assembly legislated to ban the smacking of children (that is, remove the defence of reasonable chastisement), a parent being tried in Nottingham on a charge of assaulting his or her child while on holiday in Aberystwyth would not be able to raise the defence of reasonable chastisement, even though he could do so if the incident had occurred in Nottingham.
It is of course unlikely that Nottingham magistrates would end up hearing the case described above. Most likely it would be heard in Aberystwyth. Nevertheless, it is totally conceivable that other types of cases arising from Wales and involving questions of Welsh law would be heard in England.
That anomalous situation existed before the 2011 referendum, exists now and would still exist after a reserved powers model were put in place, unless something were done.
One answer (my preference) would be to establish by Act of Parliament a distinct jurisdiction for Wales, putting Wales on the same footing as Scotland and Northern Ireland. However that is not the only solution. Another proposal would be to remove the “extend to England and Wales” wording for the purposes of which courts can hear which cases, and give the courts in Wales exclusive power to determine Welsh cases at first instance without necessarily formally creating a distinct jurisdiction.
On a broader scale, this is much like how things used to be when only local courts had the power to hear cases relating to their territory – from Pontlottyn Magistrates in recent times to the Court of Great Sessions, abolished in 1830, which for almost 300 years had exclusive power to hear certain cases in Wales. In other words, the England and Wales system of courts can have (and has had) some courts within it which are the only ones allowed to hear certain types of cases, geographically defined. So the England and Wales jurisdiction would remain, in formal terms.
Even if this were not done, however, it seems probable that such a system would develop informally over time, building on the foundations of legal practice that already exist. After a few years, this might become a true distinct legal jurisdiction (through statute), much as the Assembly itself evolved from de facto separation of powers within a single body to true (de jure, as a result of the 2006 Wales Act) separation of powers. It’s the raggedy way things happen for Wales. If so, we must hope that it happens on the basis of rational planning, rather than ad hoc reaction to changing circumstances.