The case for Welsh legal jurisdiction

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.”