Legal Wales conference

Welsh Government: the ‘inevitable’ devolution of justice:

At the Legal Wales conference in Aberystwyth in October, Jeremy Miles AM, the Counsel General, announced that a Welsh legal jurisdiction and legal system are now ‘inevitable’.

About the author: Huw Pritchard is a lecturer in law at the Cardiff School of Law and Politics.

This is the latest restatement by the Counsel General of the Welsh Government’s support for a new legal system. With growing divergence in laws, and a void between devolved functions and reserved justice functions, there is growing pressure on the sustainability of the single legal jurisdiction (see pages 20 and 21 of this issue).

The issue of a Welsh jurisdiction has been debated since 2012. However, the Draft Wales Bill 2015 exposed challenges to creating a reserved powers model of devolution for Wales, similar to Scotland, while trying to retain the single legal jurisdiction. The UK government attempted to place restrictive tests on the ability of the National Assembly to legislate to change criminal law, civil law, and reserved most matters related to justice. Some of those tests were avoided in the final Wales Act 2017, but it placed the Welsh Government on the path to prepare for a new legal system for Wales and the devolution of justice.

A Commission on Justice in Wales has been established under the chairmanship of Lord Thomas of Cwmgiedd (see pages 18 and 19 of this issue). It is currently reviewing the administration of justice in Wales and has a wide remit over criminal justice, civil justice, the legal profession, legal tech and the economy of Wales, legal and vocational education and training, and access to justice. Its findings may highlight some crucial differences between justice in Wales and in England, and could also discover areas where the devolution settlement causes frictions or gaps in the administration of justice or access to services for those in the justice system. It is expected to report in the latter half of 2019.

In the short term, the Counsel General’s main priority is in improving the accessibility of Welsh law. The Legislation (Wales) Bill is expected to be laid before the Senedd by the end of the year. This seeks to place a duty on the Counsel General to undertake a consolidation and codification programme for an area of law in each Assembly term. The codification programme seeks to make the body of Welsh law more identifiable and accessible to lawyers and the general public. To accompany that, the Welsh Government intends to relaunch the Law Wales website next year. The Counsel General made a call for the legal community to contribute to that project.

More generally, there has been a shift in the way the Welsh Government has approached justice. For example, consultations on removing the defence of reasonable punishment against children and removing the imprisonment sanction for non-payment of council tax are clearly framed as matters of justice. There is also a growing view that justice should be viewed as a public service, alongside other services, such as health and housing.

Devolution has always been considered as a process. The devolution of justice is likely to be a core part of the next phase of that process.