Government and Politics

Cymraeg

The third pillar of devolution

Since the successful referendum triggering the Assembly's acquisition of full law-making powers across the devolved fields of government there has been a remarkable shift of attention by Assembly Members and Ministers in the direction of the courts. Since December 2011 the Assembly's Constitutional and Legislative Affairs Committee has been conducting a long-running in-depth inquiry into the establishment of a separate Welsh legal jurisdiction. This has been running in parallel with a Welsh Government consultation on the same issue.


What makes this interest in the concept of a separate Welsh legal jurisdiction remarkable is the almost total lack of any previous public discussion of the issue. The received wisdom has always been that Wales was permanently welded together with England in 1536 and that maintaining this state of affairs was part of the law of nature. The conventional view was articulated by the Secretary of State for Wales, Cheryl Gillan, when commenting on the launch of the Welsh Government's consultation. "The current system for England and Wales has served Wales well for centuries" she said. "There is no reason to make changes simply for change's sake."


Few would disagree that any change would need to be justified and neither the Assembly's inquiry nor the Welsh Government's consultation have prejudged their respective outcomes. But the Welsh Government's law officer, Counsel General Theo Huckle QC, was on firm ground when, referring to the huge constitutional changes that have affected Wales, Scotland and Northern Ireland collectively over the past 13 years, he said that: "In this context, the time is now right to consider whether or not there should be a separate legal jurisdiction for Wales."



Maintaining the rule of law


Maintaining the rule of law, which is the basis of any civilised society, involves three different activities. Laws must be made, they must be administered and they must be enforced. The first is the work of the legislature which, in relation to those areas of law that have been devolved to Wales means the National Assembly. The second is that of the executive - in those same areas, the Welsh Government. The third is the role of the courts. Whilst the legislative and executive pillars of government are now organised on a "devolved" basis, with distinct institutions serving Wales in relation to devolved areas of law, the third pillar of governance, the courts, are not. There is no distinct Welsh legal jurisdiction although, significantly, neither is there a UK legal jurisdiction, but rather an "England and Wales" one.



Activity Whose responsibility? Pillar of government
Making laws The legislature - the National Assembly for Wales 1st pillar
Administering laws The executive - the Welsh Government 2nd pillar
Enforcing laws The courts - England and Wales legal jurisdiction, no distinct Welsh one 3rd pillar



Practical implications of separating the England and Wales legal jurisdiction


What are the practical implications of this mis-match? It has long been believed that the three pillars of government (or more properly of governance since we would not normally refer to the courts as an arm of "government") must, in a free society, have a high degree of independence one from the other - the doctrine of "the separation of powers." But experience suggests that, for practical reasons, total separation is neither possible nor desirable. The nature and extent of the necessary working relationship between the courts on the one hand and legislatures and governments (whether UK or devolved on the other) are crucial to the case for and against recognising the courts system as the third pillar of devolution and formally creating a separate Welsh legal jurisdiction.


The starting point is the proposition that the role of the courts is to give effect to the will of the legislature. Judges take legal rules, whether contained in Acts of Parliament or of the Assembly, or in orders or regulations made by Ministers under powers delegated under such Acts, and apply them to particular cases. Judges have no discretion to refuse to apply statutory provisions or to apply different rules of their own. In this sense, the application of the rule of law is a joint enterprise between legislators and judges.


Inevitably, there is often uncertainty as to how to apply legal rules. The meaning of the statute may be unclear. Or the particular case before the court may involve a situation which should have been contemplated when the Act was drafted but which was overlooked. In such cases, judges strive for the outcome that they believe the law-makers intended (or would have intended had the situation been foreseen). If part of the role of the judge is to try to get inside the collective mind of the law-makers, what happens when different laws are made by different law-makers? Until 1973 this situation could not arise. The only laws that the courts in Great Britain had to apply (Northern Ireland was a special case) were those made by the UK Parliament.



The European Communities Act 1972


Then, with the coming into force of the European Communities Act 1972 a fundamental change began to take place. The courts began to have to interpret and apply laws made by the institutions of the EU and which were drafted in accordance with quite different and unfamiliar continental legal traditions. They were however provided with the ability, where they were unsure of the right interpretation, to refer the matter to the European Court of Justice for a ruling.



Devolution


1999 brought a huge further leap by establishing devolved parliamentary bodies in Scotland, Northern Ireland and Wales with (other, at that stage, than in the case of Wales) the power to make law. Judges in each part of the UK are now applying statutory rules made by devolved legislatures as well as by the UK parliament (or in some cases the EU) as well as giving effect to rights created by the European Convention on Human Rights and other international instruments.



A distinct history


For historical reasons which arise out of the way in which the UK was assembled, Scotland and Ireland have, and always have had, separate and distinct courts and judges and indeed have always had separate bodies of law, even if those laws were (with the exception of Northern Ireland legislation between 1921 and 1972) all made, since the creation of the UK, by the Westminster Parliament. As a result, laws made by the Scottish Parliament and Northern Ireland Assembly are applied, day to day, by judges who have always lived their professional lives within their respective territories and who are immersed in the historical, cultural and political traditions of those territories.


England and Wales, on the other hand, currently share a single legal jurisdiction and have done so for a very long time, although not for as long as many believe. Whilst the Laws in Wales Act 1536 extended English laws, made by the Westminster Parliament, to Wales, this was followed, shortly afterwards, by the creation of a separate courts system for Wales (other than Monmouthshire) with its own judges, but administering "English" law. This uniquely Welsh court, the Court of Great Sessions, was not abolished until 1830. But, at least for the past two centuries, Wales has been no more than a part (and a relatively small part at that) of the common England and Wales jurisdiction, centred on, and to a large degree centralised in, London.



How justice is administered today


The great majority of judges who administer justice in Wales are, of course, just as much a part of Welsh society as the Scottish and Northern Irish judges are a part of the societies of those territories. These are the district and circuit judges based at courts in Wales. Their more senior colleagues, High Court and Court of Appeal judges (to whom difficult issues of the interpretation of Welsh legislation would eventually be referred) are, however, based in London and generally operate collegiately rather than by reference to a particular region. They therefore, as a body, inevitably reflect the jurisdiction as a whole.


Wales has traditionally been strongly represented in the higher courts, and the system of presiding judges means that High Court judges from Wales have an important voice in the organisation of the judiciary locally. But there is a single head of the judiciary of England and Wales (the Lord Chief Justice) and judicial training is organised on an England and Wales basis. Judicial appointments are the responsibility of an independent commission for the whole of England and Wales, although this does not prevent it from taking into account the particular needs of Wales when recommending individual appointments.



Does the absence of a separate Welsh jurisdiction matter?


To what extent does the absence of a separate Welsh jurisdiction matter? That depends on how one assesses the significance and weight of a number of different factors.


One of those factors is the extent to which Welsh legislation reflects a distinct approach to law-making which calls for a correspondingly different approach to the interpretation of that law. Welsh legislation is still in its infancy. But it is already possible to discern differences of approach from that traditionally taken at Westminster. The Rights of Children and Young Persons (Wales) Measure 2011, importing the UN Convention on the Rights of the Child into Welsh public law relating to children and young persons, illustrates how Assembly Members see the setting of high level principles as a legitimate role for legislation. Assembly legislation generally also demonstrates a willingness by the Assembly to delegate a wide discretion to Ministers to fill in detailed provision by subordinate legislation. Assembly Members do not come to the Assembly with rigid conceptions as to the proper role or form of legislation and the institution itself does not seek to impose any on them. The relatively small number of Assembly Members and the wide areas for which they are responsible also encourages concentration on broad principles rather than on fine detail.


Even where there are no difficult issues relating to interpreting and applying Welsh legislation, that legislation, and the case law which it generates, will inevitably develop into a growing corpus of Welsh law. Whilst the aptitude and experience of judges and lawyers equip them to deal with new and expanding areas of law, divergence between the law of Wales and the law of England will become an increasingly important fact of life and will tend towards a growing specialisation in those different bodies of law.



Comparing different sets of law


As things stand, arguments based on differences between different sets of law can be something of a two-edged sword. For the historic reasons already mentioned, the UK was, until relatively recently, an area with a single legislature but three legal jurisdictions. It now has four legislatures but they are organised in a characteristically idiosyncratic way. Whilst the devolved legislatures make law, within their territories, on subjects devolved to them, the UK Parliament continues to make law in relation to England generally but also on non-devolved subjects throughout the UK.


In most countries with a division of law-making powers between a central legislature and local legislatures there are different court systems enforcing different kinds of law. In the US, for example, state courts enforce state laws and federal courts enforce federal laws. But in the case of the UK, the courts of each part of the UK enforce all laws that apply in that territory, irrespective of which legislature made them. So, for example, Scottish courts enforce UK company law and Scottish criminal law alike.



Lack of symmetry


Another atypical feature of the current scheme of devolution is the lack of symmetry in what is devolved in relation to different parts of the UK. In particular, the subjects devolved to Wales, although wide, are very considerably narrower than those devolved to Scotland and Northern Ireland. The law relating to general criminal, civil and family law, which together represent the "bread and butter" work of the courts, is devolved to Edinburgh and Belfast but not to Cardiff.


The consequence is that if a separate Welsh jurisdiction were somehow to be created overnight the judges sitting in the Welsh courts would, for the foreseeable future, spend almost all their time applying exactly the same law, in accordance with the same precedents, as their colleagues in England. Naturally the inevitable growth of Welsh law on devolved subjects over time would have an effect on this as, probably to a decisive degree, would the acquisition by the Assembly of powers to make law over as wide a range of subjects as its Scottish and Northern Irish counterparts. But for the time being the practical arguments arising out of the need for the judiciary to be responsive to the source of the law which they apply could be seen as counting against the creation of a separate Welsh jurisdiction.



Steps towards change


One does not necessarily need to opt either for the status quo or, alternatively, for the immediate creation of a fully-fledged Welsh legal jurisdiction. Since devolution, limited but significant steps have been taken to adapt the courts in Wales so as to respond to constitutional change. The most important has been the development of a Welsh Administrative Court, with its own office in Cardiff. High Court judges experienced in constitutional and administrative law issues, usually with a thorough understanding of devolved government, now sit in Cardiff and in other court centres around Wales in order to hear challenges to the legality of actions by the Welsh Government and other public authorities in Wales. The Court of Appeal also sits regularly in Wales, hearing, amongst other cases, appeals arising out of the work of the Administrative Court.



Models for a Welsh jurisdiction


As a model for the evolution of a Welsh jurisdiction, the example of the Administrative Court is not perfect. Many cases that could, and should, be heard in Wales continue, for one reason or another, to be heard by Administrative Court judges in London, Birmingham or Manchester. But the situation has improved immeasurably since the first tentative steps were taken towards decentralisation of the work of the Court in 1999. The template of an autonomous Administrative Court for Wales, once fully achieved, could be applied to other areas of law, as the role of Welsh legislation in those areas develops.


The debate on the desirability of a separate Welsh jurisdiction has generated considerable interest. Strong views have been expressed both for and against. Often these have reflected views held on devolution generally. But the debate has also provided an opportunity for a sober examination of important practical issues. Now that the topic of the relationship between the courts and the other pillars of devolution has come, perhaps rather unexpectedly, on to the agenda, it will certainly remain there.