I’ve posted previously about devolution in the United Kingdom, and the ongoing legal and political processes that accompany (see here, here, and here, for example). One element that is currently on the table, and reputedly close to First Minister Carwyn Jones’ heart, is the idea of establishing a separate Welsh legal jurisdiction. Accordingly, in March of this year, the Welsh Assembly Government launched its consultation on a separate jurisdiction, effectively initiating public debate on the subject.
What is a separate Welsh legal jurisdiction? In the UK, there are currently three jurisdictions: England and Wales; Scotland; and Northern Ireland. In essence, a separate Welsh legal jurisdiction means the legal separation of Wales from the historical jurisdiction of England and Wales.
The other jurisdictions are distinct. Scotland’s law is very different from that of England and Wales. The law is basically civil in origin (i.e. not common law), and is governed by two legislatures, the Scottish Parliament at Holyrood in Edinburgh, and the British Parliament at Westminster. In general, the responsibility for the corpus of Scots law resides with the Scottish Parliament. However, there are a number of important dimensions of Scots law that are beyond the Scottish Parliament’s purview, namely those aspects termed “reserved matters,” that is, those bits reserved to, or retained by, Westminster in the devolution legislation.
For its part, Northern Ireland’s jurisdiction, generally speaking, conforms to the same common law rules as England and Wales, although land law in Northern Ireland is different.
In other words, there is no single, overarching UK-wide jurisdiction. The UK has different models for the relationships between Parliament at Westminster and the devolved legislatures, so it is not a federal state, nor is it any longer a unitary state, nor is it a confederation. In this context, on March 3, 2011, a referendum was held and Welsh voters last year approved increasing the extent of legislative power held by the National Assembly for Wales. The Assembly now has greater law-making powers on devolved matters, but there is no clear or simple way to proceed with law-making, or to navigate intergovernmental conflicts between Westminster and Cardiff, or conflicts that have UK-scale implications. Furthermore, as the Assembly proceeds with law-making, the pressures of a devolved legislature, with a distinct body of law, situated within a larger legal and territorial jurisdiction, create tensions and increase the pressures that arise from strained and uncertain intergovernmental relations.
Additionally, the UK Coalition Government’s Welsh Secretary, Cheryl Gillan, has enunciated her concerns regarding the need for a separate Welsh legal jurisdiction, arguing that there are risks involved, and that the existing system has “served Wales well for centuries.” This seems not to augur well for reception of the idea or furtherance of the debate by Whitehall.
Nevertheless, the Assembly Government has proceeded with initiating that debate, and with the closing of the consultation on June 19, the Assembly Government’s Constitutional Policy Team will get to work analyzing and interpreting the comments provided. The results and outcomes of the consultation and further procedures in pursuing a separate Welsh legal jurisdiction will doubtless make for compelling political drama. I’ll try to keep up on the drama in this space as things proceed.