The Referendum Debate

The revelation that Justice Secretary Jack Straw has blocked publication of Cabinet papers detailing Ministerial rows over the creation of the National Assembly provides a new context for the views he put forward in his Law Society lecture on The Administration of Justice in Wales on 3 December.

One of the most devolution-sceptic members of the British Cabinet Straw was surprisingly warm about the impact of devolution. “Political debate has been energised and policy-making improved by the creation of new political structures,” he declared. “Devolution continues to deliver benefits to all parts of the Union”. And he quoted approvingly from a speech a few weeks earlier by Peter Hain, also delivered at Cardiff University:

“Wales has benefited from devolution – a nation quite transformed from the one we all knew twelve years ago. And transformed very much for the better. More self confident. More vocal. More democratic. Welsh identity is flourishing as never before …”

However, in a little noticed passage of his speech (available on the Justice Ministry website www.justice.gov.uk) Straw revealed his underlying attitude. This was when he took on the notion that because the Assembly was moving towards acquiring primary legislative powers the day would come when there will need to be a distinctive Welsh legal jurisdiction, paralleling those that exist in Northern Ireland and Scotland.

Equally important to his stance against separating the legal identities of England and Wales was his insistence that, if demand were to grow in Wales for a distinctive jurisdiction, then a referendum would be required for it to be brought about. This is what he said:

“My strong advice is that there are overwhelming arguments against a move towards separate jurisdictions. No one should underestimate the enormous practical implications. Would decisions of the English courts become merely persuasive in Welsh cases, rather than binding, for example? Would a separate legal profession need to develop, with its own systems of professional regulation? Could Welsh judgments be enforced against English defendants, or Welsh proceedings served in England? Such a large and ambitious project would certainly require primary legislation, and there would inevitably be an expectation for it to be approved by a referendum.”

This insistence on a referendum accompanying what for most people would seem a relatively modest and, indeed, rather obscure constitutional development compared with the move to primary powers, betrays a disturbing latent attitude towards Wales at Westminster. There will be an extreme reluctance to let go, even if the referendum likely to be held next Autumn on moving to Part 4 (legislative) powers under the 2006 Wales Act is successful. Are we to expect a demand  for a referendum every time Wales wishes to make a constitutional step, however, limited that might be?

Certainly, this is something that our new First Minister Carwyn Jones should be pondering, not least because it is he who has been in the vanguard of articulating the need for Wales to develop its own jurisdiction. This is how he put it, writing in this year’s Spring edition of the IWA’s journal Agenda:

“Once the National Assembly is able to exercise primary legislative powers, following a referendum, I think it is inevitable that we will have to consider creating a distinctive legal jurisdiction for Wales. It is a question which neither the Welsh Assembly Government, nor the legal community in Wales can shy away from. It’s worth noting that a separate jurisdiction need not be bound up with future powers. The One Wales agreement between the two parties in the Welsh Assembly Government includes a commitment to consider devolution of the criminal justice system and moves towards the establishment of a single administration of justice in Wales. However, to my mind it is not necessary to first have the devolution of criminal justice before we consider creating a Welsh jurisdiction. In Scotland, for example, employment law and importantly aspects of criminal law are not devolved, yet the jurisdiction is different. So a jurisdiction does not require that the legislature that it oversees has control over all areas of law. The increasing divergence of the law in relation to England and to Wales, and the bilingual character of the legislation produced by both the Welsh Assembly Government and the National Assembly for Wales, has also given impetus to the need for institutions of justice to be managed locally.”

This is a debate we can expect to hear much more about in the coming years. And it makes very timely the announcement by the House of Lords Constitution Committee that it will be conducting an inquiry into the place of the referendum in the UK’s constitutional experience. As its call for evidence states:

“This inquiry aims to tackle this question by analysing: arguments for and against the use of referendums as a democratic and constitutional tool; what place the referendum has or might have in the UK’s system of Parliamentary democracy; the UK’s experience of the referendum; the effectiveness of the Political Parties, Elections and Referendums Act 2000, and the statutory role of the Electoral Commission; international case studies of the use of the referendum; and prospects for the future”.

Evidence has to be tabled by 4 January. In putting forward its response the IWA will be drawing attention to Jack Straw’s suggestion that the referendum should be deployed as a device to frustrate Welsh constitutional aspirations.