Separate legal system debate

The Welsh Government has begun a public consultation on whether Wales should have a separate legal jurisdiction to England. Despite gaining primary legislation powers in a referendum last year, Acts passed in Wales still form part of the law of England and Wales - unlike in Scotland and Northern Ireland.

The First Minister, Carwyn Jones, who is a former lawyer, says the constitutional make-up of the UK has changed dramatically since devolution began in 1999. He says that because of last year's referendum, which gave the Welsh Assembly further law making powers, more distinct Welsh law will be made making the English and Welsh legal system increasingly divergent.

Wales is an old country, but a young democracy. We now feel it essential we have a public debate on whether or not Wales should be a separate legal jurisdiction, and the implications this could have for Wales and the rest of the United Kingdom.

– Cawyn Jones AM, First Minister

The Secretary of State for Wales, Cheryl Gillan has responded to the move by the Welsh Government saying that she is suprised that the government in Cardiff Bay had made it a priority. She added that she is "not clear the problem needs to be addressed" and asked "how would such a change benefit people or business in Wales?"

Currently Wales has powers in 20 devolved fields including education, health and the environment. There have been a number of separate policy areas and laws which have been pursued by ministers. They include keeping prescriptions free for all Welsh citizens as well as introducing a 5p charge on single-use carrier bags.

Last year the Welsh Assembly gained primary law-making powers for its devolved fields - meaning the institution no longer had to gain approval from Westminster before laws came into effect. But because England and Wales is a single legal jurisdiction, the laws made by the Assembly or by the UK Parliament still form part of the law of England and Wales - even if they are only intended to apply in one country.

Wales' Counsel General, Theodore Huckle QC, said the time was right to debate the issue. He says separate jurisdictions can exist within the United Kingdom, with Scotland and Northern Ireland having their own jurisdictions separate from that of England and Wales.

In this context, the time is now right to consider whether or not there should be a separate legal jurisdiction for Wales.

– Theodore Huckle QC, Counsel General

Although the Welsh Government said it is merely undertaking a "listening exercise", the very mentioning of a separate jurisdiction has prompted a mixed reaction in legal circles. A number of leading law firms and organisations have refused to publicly comment until they have fully digested the consultation documents. However, with Wales having around 6,000 practising solicitors compared to the 125,000 in England, some say they "fail to see" how a separate system would be beneficial.

Others argue the issue is one which needs to be addressed due to the "increasing divergence" between Wales and England's legal systems. A memo to an Assembly committee, written by Cardiff Law School Professor Dan Wincott and Morgan Cole solicitors' partner Emyr Lewis, described the issue as "complex". It read: "The creation of a distinct jurisdiction for Wales would raise questions about the qualifications required to practice as a lawyer within it.

"There would also be a question about whether lawyers could normally continue to practice on both sides of Offa's Dyke after the creation of a distinct jurisdiction in Wales.

"Similar considerations would apply to the appointment of judges."

Mr Huckle is expected to deliver a statement to AMs in the Senedd at about 2.40pm today. Following his address, the Welsh Government's consultation document will then be made public.