‘Wales, a Jurisdiction?’

Ladies and Gentlemen, I am delighted to have the opportunity to speak to you this evening. As the Law Officer for Wales, the quality of legal education (particularly the standards here in Wales) is a primary concern for me and, with such significant constitutional changes happening in the UK at this time, it has never been more important for future lawyers to have a clear understanding of Devolution generally within the UK and in particular how it relates to and affects Wales.

In this regard, I am buoyed by the aims of this very society to pursue excellence in the field of legal education and I would like to quote the words of your former President, Sir Neil McCormick QC:

“The fate of constitutionalism and the Rule of Law is nowhere a matter for complacency. Teachers of law protected by a justly defined academic freedom and imbued with a proper sense of professional self-respect and civic responsibility have a special rôle to play in maintaining critical awareness of the preconditions for law and liberty. The part they play is scarcely less vital than that of an independent judiciary and legal profession.”

I think that these words  capture well the role that legal education has in helping to define the future of the profession and in ensuring that all lawyers, and in turn their clients and the public at large, can benefit from a thorough, well-founded understanding of the law and the virtues which it is duty bound to protect.

But it should not only be for educators to help explain and clarify the law. We in Welsh Government have a particular obligation to ensure that the law applying in Wales is as clear and accessible as possible so that all members of the public: lawyer and lay person alike, might benefit from that legal clarity. Given the complexity of a Statute book with provisions covering England and Wales, as well as our own Assembly legislation, this is by no means a small task, but I hope that, with the benefit of strong academic contributions, we can make progress together on this front.

It is a particular pleasure to be addressing these issues in the week in which the first Welsh Act received Royal Assent and with the first application of the new Welsh Seal thereby passed into law to become the National Assembly for Wales (Official Languages) Act 2012.

The continuing development of devolution

Before addressing my main subject, the possibility of a separate legal jurisdiction for Wales, I need to set that issue in the wider context of the continuing development of Welsh devolution.

Since 1998, our devolution settlement has undergone a period of steady and progressive – and indeed historically and constitutionally astonishingly rapid – change. The Government of Wales Act 2006 represents a landmark in that Welsh history: formally separating the executive from the legislature in Wales, and providing a host of new powers for Welsh ministers and now, since the 2011 referendum, bringing primary legislative power to Wales for the first time in over 500 years.

But we still have further to go, and it is important for us to recognise that the Welsh devolution settlement as it stands is not necessarily the complete picture: As the democratic needs of the people of Wales develop, so too must the settlement intended to meet those needs.

In October 2011, following a commitment in the UK Government’s coalition agreement, the then Secretary of for Wales established a Commission on Devolution in Wales, commonly referred to as the ‘Silk Commission’. Its remit, so far as relevant to tonight’s discussion,  is to investigate any changes which might be made to the Welsh devolution settlement that would enable both the United Kingdom Parliament and the National Assembly for Wales better to serve the people of Wales. This is, in effect, an inquiry into the best allocation of legislative responsibilities for Wales as between Parliament on the one hand and the  Assembly  on the other.

It will be for the Silk Commission to set its own timetable for its work, but it must complete its task by March 2014. The Welsh Government’s assumption is that the Commission will issue its call for evidence before the end of this calendar year; if so, we hope to be in a position to respond with a written memorandum of evidence early next year.  Our intention will be to seize this opportunity to argue for the development of the devolution settlement in a way which will benefit the people of Wales; but of course we accept that it will be the UK Government, probably the one to be elected in 2015, that will decide how to respond to Silk’s recommendations.

However, it is important to remember that devolution does not just develop through commissions and settlements; it develops each and every time its limits are considered in the courts. This is something of which I am acutely aware, as in the short time since I assumed my responsibilities as Counsel General, I have twice appeared before the Supreme Court on devolution issues.

The first such occasion was last year, shortly after my appointment, where I acted for the FM intervening in the Scottish case: AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland) to represent Welsh interests. The Welsh Government sees the judgment as recognition by the Supreme Court that the National Assembly has, within the scope of its policy areas, the same law making powers as the Westminster Parliament. It sets a precedent for how Acts of the Assembly will be treated by the courts and it is clear from the judgment that the circumstances in which the courts may overturn an Act will be exceptional and certainly not a matter of the ordinary Judicial Review which can be made of secondary legislation.

This was a decisive victory for all of the devolved administrations in the UK, and I am very pleased that my team was able to well to represent the interests of Wales and the Welsh public at the Supreme Court.

The second such occasion occurred just a month ago, when we defended the Attorney General’s reference on the Local Government Byelaws (Wales) Bill (expected to be the first Welsh Act but currently on hold!).  This was on its face a purely Welsh case, but it is interesting that the Northern Irish Attorney-General chose to appear, just as I had done in the Scottish AXA case; and this reminds us that the various devolution settlements, although differing in detail, exhibit some common elements of interest to all of the devolved institutions.

In this case, the Attorney General referred the Byelaws Bill to the Supreme Court under section 112 of the Government of Wales Act 2006, a power which he and I both share, which enables either of us to submit any Bill which we feel is beyond the legislative competence of the Assembly to the Supreme Court for scrutiny.

The case concerns the interpretation of a clause in the Bill which removed the need for Local Authorities to have certain byelaws confirmed by Ministers. While in most cases this power was held exclusively by Welsh Ministers, due to the wording of the original Transfer of Functions Order in 1999, certain confirming powers were held concurrently by Ministers in both Cardiff Bay and Whitehall.  The Bill proposes to remove both aspects of ministerial power in order to localise the process of byelaw-making to the authorities passing them, without the need for executive review or scrutiny other than by the normal means of challenging instruments which have been sought to be created ultra vires.

It was the removal of UK Ministerial functions which was of concern to Wales Office and hence to the Attorney General.

Under paragraph 6 of Part 3, Schedule 7 of GOWA, an Act of the Assembly may remove or modify a pre-commencement function of a Minister of the Crown provided that it is incidental to, or consequential on, any other provision contained in the Act. It was, and still is, our contention that these provisions were consequential on the main provisions of the Act, and we remain hopeful that the Supreme Court will agree with us.  Either way, we will have more clarity as to the boundaries of the current settlement.

It is inevitable that cases and references such as these will be brought to Supreme Court as those operational boundaries between the legislatures in Cardiff and Westminster are tested, but it is important that we do not view these cases as hurdles to overcome but rather as opportunities to grasp in the process of devolution. These cases tell us much about where the boundaries lie – the extent to which the process or project of devolution has succeeded in giving to the people of Wales full democratic control over their affairs in the devolved areas – and where the boundaries perhaps should be moved. So the outcome of the case will be of direct interest to the Silk Commission, as well as of course to the Welsh Government.

20    We await the judgment of the Supreme Court case on the Byelaws Bill, but there is one particular observation about it that I can make now.  That case was heard in the Supreme Court without the benefit of a Welsh judge on the bench; we do not find this acceptable.  Interestingly I was repeatedly called upon to take the Court through the development of Welsh devolution in some detail. Wales is the only part of the UK, with its own legislature, not formally represented in membership of the Supreme Court. That position should not be allowed to continue, regardless of whether we move to a separate legal jurisdiction for Wales. And at a slightly less exalted level, we also need to maintain the specific representation of Wales within the membership of the Judicial Appointments Commission, although my representations to that effect to the Ministry of Justice – which proposes to permit such representation but not to require it as part of the statutes of the Commission – have thus far fallen on deaf ears. We will continue to make that case vigorously.  We see that change as a remarkably retrograde step.

A separate Welsh jurisdiction

So now I turn to the specific question: ‘Wales, a Jurisdiction?’

This question has been one of the focal points of my work for over a year now and it is truly a fascinating and important issue for the people of Wales. While it is primarily a political rather than purely legal question, it carries significant consequences for the legal system here in Wales and, as senior legal advisor to Welsh Government and also the Law Officer for Wales, I have taken a keen interest in it.   Unusually I was asked to take a partial policy rôle in leading for Government with the First Minister on the consultation. I am glad to say that the decisions as to policy will remain for the Cabinet!

22. The case for establishing a separate jurisdiction is intimately related to the developing constitutional position of the UK, and Wales’ place within it. In a speech at the LSE last week, the First Minister set out his perspective on this; he said that “we need to envisage a United Kingdom which is politically diverse, looser, ad combines several centres of democratic accountability”. If the envisaged development is, as the First Minister implies, towards an increasingly ‘federalised’ constitution for the UK, that would suggest that, at some point in time, a separate legal jurisdiction for Wales must inevitably be created. For now, it suffices to say that the next few years are likely to be ones of considerable constitutional change, and I have no doubt that members of this Society will want to make their own distinctive contributions to the debate.    I very much relish the continuing debate.

But what IS a separate legal jurisdiction and how would we go about establishing one in Wales? In April this year, the First Minister and I launched the consultation seeking views on these issues:

What is meant by the term “separate legal jurisdiction”;

Whether there are any essential features for the existence of a separate legal Jurisdiction and, if so, what they might be;

What the consequences of having a separate Welsh legal jurisdiction might be; and

What the potential advantages and disadvantages of a separate Welsh legal jurisdiction would be.

A number of respondents provided outline definitions of what was meant by the term “legal jurisdiction” but many emphasised that it was difficult to provide a definitive explanation. Out of these responses, some specific features of a jurisdiction were identified; namely, that it applied to a defined territory, that there was a body of native law, that it contained legal institutions and had a courts system.

One of the most prominent of these themes was the belief that a separate legal jurisdiction in Wales without a distinct court system would be like, to quote one respondent: “a cart without a horse”. So it was argued that in a separate Welsh legal jurisdiction you would expect the following institutional machinery to be in place:

• a Welsh judiciary;
• a Welsh court structure;
• a Welsh Judicial Appointments Commission;
• a Welsh Courts and Tribunals Administration Service;
• a Welsh Law Commission;
• a Welsh judicial training board.

I should not be taken as agreeing with this in all respects, but it illustrates that moving to such a jurisdiction would be no small matter.

Results of the consultation

What did the consultation tell us? Generally the views were mixed as to whether or not Wales should have a separate legal jurisdiction. Those in favour of establishing a separate legal jurisdiction generally acknowledged that, whilst this may not be an immediate prospect, there is a likelihood that a separate Welsh jurisdiction will be required at some stage in the future, and that preparatory steps are desirable now in order to facilitate this change.

Their reasons were as follows: Firstly, that the existence of the Assembly’s legislative competence is a key consideration in arguing for the creation of a separate Welsh legal jurisdiction.  Some consultation respondents noted that it is unusual (if not unique) to have two legislatures in the same jurisdiction and with general power to legislate on the same subject matter as part of the same overall body of law: laws passed concerning Wales in both Cardiff and Westminster both form part of the corpus of the law of England and Wales. Separating Wales from the existing jurisdiction was seen by them as a logical consequence of our having created an Assembly for Wales with broad legislative competence.

Secondly, consultation respondents drew attention to the increasing divergence of Welsh law from that applying in England. Respondents believed that as this divergence will continue as the Assembly continues to legislate in its subject areas, the current joint jurisdiction may well gradually come to be seen as   untenable over time, thus strengthening the need for a Welsh legal jurisdiction sooner rather than later to avoid a purely reactive and passive response to this inevitable legal and practical development.

Despite this, a significant number of responses raised concerns about the potential impact of a separate Welsh legal jurisdiction on professional practice in Wales. Their comments were in reference to both the quality of academic training available in Wales, and also in terms of preserving the ability of the lawyers in Wales to continue practising in England. Clearly here, before an audience of renowned academics and experienced tutors in law, this is a matter of particular significance.

In reference to this issue, I believe these concerns are not insurmountable, and further, more detailed work can be commissioned to demonstrate how such impacts could be effectively managed. It is important that, if we were to move forward with proposals for a separate jurisdiction, that we would actively work to assuage effectively the concerns expressed by consultees, and ensure that any decisions taken are suitably fit for purpose for all citizens and organisations operating in Wales.

As for those who were in favour of maintaining the jurisdictional status quo , their arguments generally referred to the undoubted success the current joint jurisdiction has enjoyed for centuries, and their view that the current devolution settlement was strong enough to deal successfully with any divergence in the laws of England and Wales. Concerns were also expressed that nothing should be done to raise artificial barriers between legal practice in each of England and Wales; and it was suggested that Welsh economic interests would not be well-served by action appearing to exclude Wales from the English commercial law system which is regarded as a world leader.  It obviously does not go without saying – and so I say it – that there is no appetite at all in Welsh Government to embark upon any changes which would have the effect of disadvantaging the legal professions in Wales.  On the contrary, we need very much to foster and grow a high quality and efficient legal sector here able to serve the people of Wales – and Government! – and to “punch above its weight” as the legal professions in Wales have always done historically.  The same applies in relation to the business community, or the public at large.  The approach of Welsh Ministers to further devolution is entirely pragmatic centred around what will be of benefit to the people of Wales which they work so hard to represents and serve.

Three related but separate questions

Some of the most valuable feedback we have received from this consultation was from those who may have made some assumptions, or have been unclear, exactly what is in issue here. In the context of the work of the Silk Commission, the Welsh Government is reflecting on three related, but separate, questions.

The first question, and the one which most obviously and immediately arises from the Silk Commission’s remit, is “What additional legislative and executive powers for the devolved institutions do we wish to argue for in our evidence to the Commission?”

Then, secondly, we ask ourselves, “Regardless of exactly what powers the Assembly has now or may have in the future, how do we think those powers should be expressed in statute?”

And then, finally, “Given our answers to those two questions, how do we approach the fundamentally political question of the case for a separate jurisdiction?

Some of the respondents to the consultation may not have successfully distinguished those questions, for example appearing to believe that our consultation was “really” about whether the Welsh Government was or should be seeking additional powers on Justice policy.  So let me say a few words about each of those questions, and how they relate one to another. First of all, what additional powers for the devolved institutions would the Welsh Government want to argue for in its evidence to Silk?

At present, the responsibility for the majority of administration of justice functions is not devolved to Wales, although there are some specific devolved functions. This is particularly the case with tribunals, where the Assembly has the power to create new tribunals and the Welsh Ministers may exercise functions (such as appointing judges and other members) in relation to certain tribunals that sit and are wholly administered in Wales. In addition, Welsh Ministers also have responsibility for the Children and Family Court Advisory and Support Service in Wales. But this is a limited set of functions, exceptions to the general rule that responsibility for the administration of justice is not devolved and remains a matter for the UK Government in respect of both England and Wales.

Looking then at policing and criminal justice, together with the system it governs: policing, the Crown Prosecution Service, criminal courts and sentencing, the probation service, the prison service and youth justice,  all this is also currently non-devolved and operates on an England and Wales basis.

In contrast, the Scottish Government has responsibility for all aspects of policing and criminal justice, save for those pertaining to national security, terrorism, interception of communications, official secrets and emergency powers.  The Northern Ireland Executive has similar powers. And of course both administrations have responsibilities for the administration of justice in their respective territories.

Of course there are great advantages in having devolved responsibility for these services. 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.

Nevertheless, it must be conceded that for the Welsh Government to assume responsibility for these matters would in some people’s views represent the single largest addition to its responsibilities since devolution began in 1999, and this at a time of acute budgetary pressures, both now and in the foreseeable future, and coming at a time when we have just lost 20 per cent of our staff through civil service rationalisation.

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? What would be the implications for the rest of the Welsh Government of our taking on this substantial additional set of responsibilities? If major new functions are to be taken on, with all the associated organisational effort needed to integrate new staff and policies into our existing activities, there would inevitably be a potential trade-off as against delivery of existing Government objectives while the  new functions were being planned for and absorbed into the structure of governance.

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; crucial aspects of the supposedly separate jurisdiction would still be the responsibility of the Ministry of Justice. Thus, arguably, establishing a separate jurisdiction without transferring the relevant responsibilities to Welsh Ministers and the Assembly would simply amount to asking the Ministry of Justice to run two parallel systems, one for England and one (albeit to perhaps lesser extent) for Wales. They would not be likely to agree to this, and even if they did, it is not obvious why the inherent confusion  would be of benefit to people in Wales.

What then of the second question: regardless of exactly what powers the Assembly has, how would we want them expressed in statute?

Currently, legislative competence is devolved in Wales by a ‘conferral’ model. This means that the Assembly only has competence in the areas which have been “conferred” upon it expressly. These areas are currently listed in Schedule 7 to the Government of Wales Act 2006 and are referred to as ‘subjects’. A reserved powers model was adopted for Scotland, and means that the Scottish Parliament can legislate about any matter, provided that that matter has not been expressly “reserved” from its competence. The reserved matters are listed expressly in Schedule 5 to the Scotland Act 1998.

The two approaches might be thought to be able to produce bodies with equivalent legislative competence. In practice, however, that has not proved the case, and the method of conferring legislative competence on the Welsh Assembly produces considerable complications, although there is no time this evening to  accord to that topic the analysis it deserves.  I offer only the analogy that this might be said to be rather like the question of whether the ball is out or in when it hits the line, the perennial soccer/rugby difference perhaps, and we lawyers might also say that in the difficult issues of where the limits of legislative competence runs in a given case, the argument is at least partly one of where the burden of proof lies!

Leaving this lyrical waxing aside, I can summarise that it is almost inevitable that a “reservation” model will result in the devolved legislature having wider competence than under a “conferral” model (because it is much more difficult, using the conferral model, to list comprehensively all the things about which the Assembly should be able to legislate, than, as under the reservation model, listing the things it certainly can’t  legislate about).

While the more common arguments for moving to a reservation model relate to its apparent clarity in comparison with a ‘conferral’ method of devolution, it is important to note this may still not make it completely clear what is within competence and what is not. The Scottish settlement has thrown up many areas of uncertainty since its inception and the Supreme Court has commented that that settlement “may not strike one as a model of clarity”. Perhaps they should look at the Welsh one!  The reality is that at the margin there is bound to be an area of considerable uncertainty whichever model is adopted.  The issue we are considering is who is given the benefit of that doubt.

One major problem is that it is currently possible for the UK Government to argue that the Assembly cannot pass certain provisions because they relate to topics that are not expressly listed in Schedule 7 – and this even if those topics are not set out in the Government of Wales Act as excepted matters. There is considerable potential for conflict on such occasion, with the Welsh Government arguing that a provision “relates to” a subject listed in Schedule 7, and the UK Government arguing that it should properly be seen as “relating to” a topic that is not so listed. It is not revealing anything particularly surprising if I say that dealing with differences such as this consumes the time and effort of far too may civil servants at each end of the M4 on far too many occasions; indeed, almost on a daily basis.

On balance we take the view that the Scottish model of reserved powers is superior in its specification of the respective legislative responsibilities of the two Parliaments in the context of seriously devolving power to the devolved legislature. That is important both for the practical conduct of day-to-day public administration, and for minimising the number of disagreements between the Governments. It is for these reasons among others that the First Minister announced last week that we will be pressing the Silk Commission to recommend that Welsh devolution be reconstituted on a Reserved powers basis.   Apart from the issues I have discussed already, this would of course have the benefit of reducing the differences between the UK devolution settlements, the so-called constitutional asymmetry.

What would be the implication of this for the question of a separate legal jurisdiction for Wales? My view is that, frankly, a reservation model of competence could function as effectively in a joint England and Wales jurisdiction as in a separate Welsh jurisdiction. To put it another way, even if we are successful in persuading Silk to recommend the reservation model, that need not necessarily lead us down the route of arguing for a separate legal jurisdiction.   The issues of SLJ will remain to be argued on their own merits in this respect.

Conclusion

My aim for this evening was to explain to you all how our thinking in relation to a separate legal jurisdiction in Wales has developed since the consultation period, and I hope that in doing so I have provided many of you with further food for thought.

I wish to stress again that we have not pre-judged this issue and are still considering all of the options with a view to develop pragmatic positions for the positive benefit of the people in Wales.

It is following directly from the debate we successfully generated – and deliberately so – with the consultation – that we have begun to think through  in detail how inter-related some of these wider devolution issues are to a Welsh legal jurisdiction. We very much  hope, going forward, to clarify further how we might approach this matter in the medium-term and long-term. As I have said, we will be responding early next year to the Silk Commission’s call for evidence, and our conclusions on the case for a separate jurisdiction will form part of that submission.

Societies such as the Society for Legal Scholars have a unique role to play in considerations such as these. Through academic debate, publications and even through direct communication, it is possible for you to use your expertise in law – and your mature thought and perspective on Welsh affairs – to help develop thinking both within the Welsh Government and amongst the wider public. We are grateful to those of you who have already contributed, and we will be grateful to those of you who continue to contribute in future.

As I have said previously, it is an exciting time for lawyers in Wales and it is a particularly exciting time to be this lawyer in Wales as we wrestle with some very big questions such as those I have touched briefly on tonight.