John Osmond reports on today’s IWA annual lecture at the Eisteddfod which explores the way the devious use of legal arguments has frustrated Welsh legal aspirations
The new law-making powers enjoyed by the National Assembly have undermined arguments made for more than a century against Wales developing its own legal jurisdiction. This claim is made today by Professor Thomas Watkin, formerly First Welsh Legislative Counsel, the official responsible for drafting the Welsh Government’s legislative programme.
Delivering the IWA’s annual National Eisteddfod lecture Professor Watkin says advocates of a jurisdiction should stick to the high ground of constitutional principle, rather than being lured by opponents into making comparisons with Scotland or debating arguments over cost.
“The strength of the argument for a separate jurisdiction for Wales is that it can now be based on constitutional and legal principles that have been accepted in the past by the institutions of the United Kingdom,” he said. “It would be folly therefore, to abandon the solid ground of principle in order to deploy arguments that are open to mockery as vague sentiment, or opposition on the ground of cost or practicality.”
Pointing out that the present England and Wales jurisdiction was only created in the 1870s, Professor Watkin says:
“It is difficult to believe that if judicial systems were being designed today for England and Wales, the decision would be in favour of one system serving the two countries, as opposed to provisions reflecting the current legal position of the two lands. It is after having answered that constitutional question on the basis of principle that the questions of cost and practicality should be considered. It is important that supporters of a jurisdiction for Wales ensure that the argument does not get moved from the firm ground of the constitutional question onto the shifting sands of costs and practicalities.”
In the lecture Professor Watkin looks back to the 1880s when the argument was made that Wales could not make its own laws because it was not a territory with its own law courts and legal system. Yet at a Speaker’s conference on devolution in 1920, where there was pressure for Wales to have its legal jurisdiction restored, the argument was used that this could not be happen because the country had no laws of its own:
“As a consequence, one can say – as in the 1880s – Wales cannot have its own legislation because Wales is not a jurisdiction, and again, as in 1920, Wales cannot have its own judicial system because Wales is not a jurisdiction.”
Similar arguments were used by Westminster politicians and civil servants who opposed campaigns for the creation of a Secretary of State for Wales in the 1930s and 1950s. More recently, during the framing of the 1998 and 2006 Wales Acts, the absence of a distinctive Welsh jurisdiction was used to justify a weaker form of devolved powers for Wales than applied in Scotland. There all powers are devolved with the exception of some that are reserved to Whitehall, such as defence, foreign affairs, and macro-economic policy. In the case of Wales, however, powers are specifically conferred in great detail in the legislation, which has led to a much more restricted and complex arrangement.
Professor Watkin points out that the term jurisdiction has at least two meanings, applying to ‘a territory which has its own laws’ and also to ‘a territory which has its own legal system’. The fact that the term can be used in these different senses has, he says, “allowed it to be used in a pretty devious manner from time to time in order to justify withholding from Wales legal developments that were being permitted, for example , in relation to Scotland.”
Yet out of these devious arguments used over more than a century clear constitutional principles have emerged which by now, he argues, have provided a firm foundation for a separate judicial system:
“Wales now has its own body of laws, a body which is going to develop and that through the actions of a native legislature and government. As it is necessary for those laws to be administered, and there is no sound reason for them to be administered outside of Wales, the call for a Welsh judicial system has a strong argument based upon a constitutional principle which has already been established.”
I am probably being incredibly thick but I can’t see what the case for Welsh legal jurisdiction is in this article. How will Welsh legal jurisdiction improve our lives, safeguard and create jobs, protect us from 15 years of public sector cuts or encourage more than half of us to vote?
I can see Welsh legal jurisdiction being of benefit to an elite, just as devolution has been. Welsh constitutional change appears to be being used to create a Welsh political class that has little democratic mandate (the majority of whom are not elected representatives but appointed functionaries of the state). The more constitutional change occurs the lower the electoral engagement – referendum turnout of 35%, no Assembly election turnout over 50%. A separate legal jurisdiction for Wales will mean nothing to the majority of people, however it will benefit an emerging political elite.
Billy, I sit here as a pensioner who has just picked up his grandson fron Nursery. I have benefited enormously from devolution, as have all of my seven grandchildren. I can only assume, therefore, that pensioners and children are members of “the elite”, as you term it. I appreciate that British nationalists will never accept devolution, in the same way that they despise Welsh individuality (and, often, the idea of Wales itself), but, I’m pleased to say, we have a new 21st Century generation that see the advantages of managing and projecting Wales. When I recall the miseries of Thatcherism and the last decades of the last century, I’m delighted to see us finally evolving in the right direction.
Frank, I appreciate that the Labour government in Wales has attempted to protect the welfare state from attacks from the Conservatives and Lib Dems. However, that does not mean that power has been dispersed downwards. Rather, power has been transferred sideways from one elite in Westminster to another elite in the Bay. Devolution has not made people feel more empowered or more involved in political decision making, hence the continued decline in voter turn out. The creation of a separate Welsh legal jurisdiction will do nothing to disperse power downwards, on the contrary, it will entrench power in the hands of the few.
The present confusion makes the simplest administrative processes difficult to plan and execute. This renders the planning and execution of all manner of policies uncertain and inefficient. For the good of individuals and of entire communities, and for the defence and enhancement of representative government, we require clarity and robustness. A secure national jurisdiction is the only way to establish this.
Given that the establishment of a devolved legislature for Wales involves the creation of a growing body of distinct Welsh legislation, the case for establishing a Welsh judicial system with the knowledge and expertise to administer and interpret that body of law is ultimately unanswerable. The only question is one of timing. That is, when the tipping point will come when the disadvantages of continuing to use the English judicial system with insufficient familiarity with Welsh law and the context in which it was made, outweighs the advantages of using an existing, functioning judicial system. In my view, a separate jurisdiction for Wales should be established when responsibility for the police and criminal law is devolved — since all manner of anomalies and disconnects could arise if the criminal and civil law in Wales are administered by different jurisdictions.