Welsh Government leans towards legal jurisdiction

The Welsh Government is moving towards recommending to the Silk Commission that a separate jurisdiction should be created for Wales. This direction of travel was set out by the Counsel General Theodore Huckle QC in an important speech to the Society of Legal Scholars at Cardiff Law School last Thursday and published in full here.

The Silk Commission will be publishing its first report on its enhancing the fiscal and borrowing powers of the National Assembly tomorrow. It is widely expected that it will recommend that the Assembly acquire significant tax varying powers, possibly over the whole of income tax collected in Wales, but only by the year 2020 at the earliest and only after two substantial hurdles have been surmounted: a two-thirds majority vote in the Assembly, followed by a referendum.

Silk Commission Special 1 Tomorrow, on the day the Silk Commission launches its first report, Richard Wyn Jones and Roger Scully reject its arguments for a referendum on devolving taxes to the National Assembly.A week tomorrow, on Monday 26 November, a major conference on the Silk Commission’s recommendations Taxation and Borrowing Powers for Wales is being organised by the Changing Union project, a partnership between the IWA, the Wales Governance Centre at Cardiff University and Cymru Yfory/Tomorrow’s Wales. Keynote speakers include: Paul Silk, Chair of the Commission on Devolution in Wales; Jane Hutt, Finance Minister, Welsh Government; Baroness Randerson, Under-Secretary of State at the Wales Office; and Gerald Holtham, Chair of the Holtham Commission. Full details of the conference and how to attend are here

The second phase of the Commission’s work, which will take the best part of another year, will be to examine:These hurdles have been agreed by the cross-party Commission mainly to assuage the doubts of the Labour representative, former Finance Minister Sue Essex. She has now stepped down from the Commission and it will be announced tomorrow that she has been replaced by former Environment Minister Jane Davidson.

Whether the powers of the National Assembly should be increased.

How they should be expressed in statute – that is to say, whether they should remain as present as conferred powers, specifically set out in Schedule 7 of the 2006 Wales Act; or, whether we should move to the Scottish mode of reserved powers in which everything is devolved save matters, such as defence and foreign affairs, which are set out in legislation as still remaining with Westminster.

Whether a separate jurisdiction should be created for Wales, as is the case with Scotland and Northern Ireland.

The capacity of the Assembly to cope with the legislative workload and scrutinise the Welsh Government effectively

In a speech at the London School of Economics a week ago (here) the First Minister argued strongly for Wales to move to the reserved powers model. Now it appears that as well as being a simpler and clearer system, this is, also to clear the way for creating a distinctive jurisdiction.

It was noteworthy, however, that in his speech Theodore Huckle argued that a separate jurisdiction need not necessarily follow on from establishing a reserved powers model for Wales. This he said, need to be argued for on its own merits. However, in making this case Huckle effectively contradicted both Peter Hain and Rhodri Morgan. At the time of the passing of the 2006 Wales Act, when they were respectively Secretary of State for Wales and First Minister, they argued that Wales could not be granted the reserved powers model precisely because that would necessitate the creation of a separate jurisdiction, and that would be a step too far.

In Wales devolution journey it seems the goalposts can be constantly moved. Back in 1973, for example the Commission on the Constitution argued that Wales could not have legislative powers because it did not have its own separate jurisdiction.  Now, because we have acquired primary powers, the case is being made that we need a jurisdiction.

In his speech Theodore Huckle suggests that for a separate legal jurisdiction we need to have the following institutional machinery in place:

A judiciary Welsh court structure

A Judicial Appointments Commission

A Courts and tribunals Administration Service

A Law Commission

A judicial training board

Taken together this structure illustrates that creating a jurisdiction is no small matter. In addition in his lecture Theodore Huckle examines the case for devolving responsibility for policing and criminal justice, including the Crown prosecution Service, criminal courts, sentencing, the probation service, the prison service and youth service.

He said that to add these responsibilities to the Welsh Government’s workload would arguably represent the biggest devolution step for Wales since the National Assembly was created in in 1999. There would, he said, be great advantages in taking the step:

“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.”

Set against this were concerns about cost and capacity:

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?

“… 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.”