The Commission on Justice in Wales (Thomas Commission)9 October 2018
An earlier version of this article was published at the UK Constitutional Law Association
The Commission is reviewing ‘the operation of the Justice system in Wales and set a long term vision for its future’, defined by three main objectives:
- promoting better outcomes in terms of access to justice, reducing crime and promoting rehabilitation;
- ensuring that the jurisdictional arrangements and legal education address and reflect the role of justice in the governance and prosperity of Wales as well as distinct issues that arise in Wales;
- promoting strength and sustainability of the Welsh legal sectors and maximizing its prosperity in Wales.
The Welsh devolution dispensation – comparatively limited (although increasing capacious) within a single territorial legal jurisdiction of England and Wales – is not widely understood, especially outside Wales. The UK’s legal geopolitics deepen the complexity of its plurinational territorial structure. Scotland and Northern Ireland have always had their own, separate, legal systems within the UK. Scots Law underpinned the emergence of an extensive, distinct Scottish territorial system from the late 19th century, as the modern system of public administration developed. At its creation Northern Ireland’s legal jurisdiction was matched by the separate elected political and administrative system of Stormont.
The law of England and Wales seems to function seamlessly in England, without much attention to Wales. But the implications for Wales of the ‘shared’ single jurisdiction are poorly understood. Even without a jurisdiction, the UK State has been able to accommodate the religious, linguistic and cultural realities of Wales to some extent. Due to the single jurisdiction, though, Wales never developed a distinct modern national legal infrastructure. Moreover, it restricted the development of distinct administrative structures for Wales, before constraining the constitutional structure of Welsh devolution.
Wales in the territorial constitution
Wales has experienced twenty years of constitutional tinkering, distracting devolved political attention from substantive policy development. From 1998 to 2017 Westminster enacted two Government of Wales Acts (GOWA 1998 and 2006) and two Wales Acts (2014 and 2017), as well as withdrawing the 2015 Draft Wales Bill. Over the same period multiple devolution investigations were undertaken: the Richard Commission (2002-2004), a UK government White Paper Better Governance for Wales (2005), the All Wales Convention (2008-2009), which resulted in a second referendum (2011), where full primary legislative powers for the Assembly were endorsed by 63 to 36%, the Holtham Commission on Funding and Finance for Wales (2008-2010) and the Silk Commission on Devolution in Wales (2011-2014). As a consequence, Wales has moved from a local government style conferred powers model making secondary legislation and funded through a block grant, to a reserved powers, full legislative model with significant authority to raise taxes. (See the Welsh Government’s account for Thomas here.)
The jagged edge of devolution in Wales
In contrast to Scotland and Northern Ireland, important policy fields such as criminal justice and prisons have been reserved from Wales on the basis of the ‘England and Wales’ territorial legal jurisdiction. These reservations have created a jagged edge around devolved Welsh policy space. A series of devolved policy areas including education, health, social care and young people intersect and overlap with policing, prisons and justice provision, which is retained for England and Wales in Westminster and Whitehall. For example, prisons policy is managed on an England and Wales basis. Basic evidence on prisoners from, and the prison population in, Wales is not routinely available. Major new developments in the prison estate – notably the 2017 opening of the ‘superprison’ HMP Berwyn at Wrexham – are designed to meet UK government defined needs for England and Wales. Berwyn opened in 2017, since when the population of English prisoners in Wales has more than doubled. At the end of March 2018 more than a quarter of all prisoners in Wales were from England.
Robert Jones has pieced together publicly available data and evidence gathered from FOI requests to the Ministry of Justice. He paints a stark picture of Welsh prisoners spread across the England and Wales estate (40% of male Welsh prisoners held in England and no women’s prison in Wales) – the long travel distances involved have a detrimental impact, including on recidivism. Other hidden problems in Wales relate to homelessness, drugs and alcohol. Justice policy is intimately intertwined with wider social policy: within the existing jurisdiction, making reserved and devolved Welsh policies and objectives dovetail appears almost impossible.
Legal education and the professions
In 2005, Peter Hain and Rhodri Morgan, then Secretary of State and First Minister, issued a joint statement: ‘Wales … forms part of a single unified England and Wales jurisdiction with a common courts system, judges who can act throughout the two countries and lawyers who are education and who practice in a way which does not distinguished between England and Wales. There is no intention to change this’ (quoted at length here.)
Yet, even GOWA 2006’s initial arcane system of primary legislation opened the way to fundamental divergence of the laws that apply in Wales from those in England. Subsequent moves widened the scope and deepened the symbolic significance of National Assembly primary legislation. After the 2011 referendum, the Assembly could legislate immediately in all devolved areas, through Welsh Acts (which require Royal Assent). The Wales Act (2017) named Welsh Law as such.
In 2005 Hain and Morgan expressed concern about judges, lawyers and legal education. A sense remains today among some least lawyers and legal educators in Wales that they may lose out in a Welsh legal jurisdiction. Evidence to Thomas has addressed the issue, in relation to legal business, as well as novel ways that aspects and implications of jurisdictional change might be managed.
Historically Law Schools in England and Wales differed little; even today, their curricula are basically similar. Of course, Welsh Law Schools have adapted – and continue to adapt – to devolution and Welsh Law. They have also developed some Welsh-medium teaching. The rapidly developing legal context and remarkably open lawmaking environment provide Universities in Wales with enticing prospects for legal education. Law Schools in Wales are rightly adapting to the increasing divergence of Welsh Law from that of its large English neighbour.
Three points can be made. First, undergraduate legal education does not turn out graduates who are immediately prepared for practice in any specialist field. Instead it should build a student’s understanding from basic foundations. Its international appeal underpins this quality. Currently, Law Schools in Wales teach undergraduates from many places around the world. They go on to practice in Calgary and Kuala Lumpur as well as Cardiff or the City of London. These students are educated in the Common Law. Even as the substance of Welsh Law diverges from English, it is most unlikely to change its fundamental character as Common Law. Of course, the attractiveness of undergraduate legal education in Wales to international students could decline, but that is not an inevitable corollary of distinguishing Wales from England as a jurisdiction.
Second, we need to acknowledge the economic realities that face many University Law Schools, in Wales and elsewhere in the UK. Student fees are the major source of University income. As well as their financial benefit to the Universities, international students can enrich the experience of those from Wales and England. (International law graduates also provide a potential resource for the legal sector in Wales – its prosperity is a matter the Commission is considering.) For domestic students, fees charged for various degrees do not, generally, reflect the relative costs of teaching the different subjects. Relatively inexpensive to teach, but with potential for high-level professional income, the Law School often makes a large net contribution to its University. The expectation that Law Schools should generate significant ‘surplus’ for University coffers might sometimes be in tension with their contribution to Welsh Law. Arguably the issues at stake here are occluded by the existence of Welsh Law without a defined territorial jurisdiction. If so, then distinguishing a Welsh jurisdiction would clarify them.
Third, those in government and legal practice need a clear, realistic understanding of the character of University legal education. If government expects academic lawyers to provide expertise on fine points in all areas of Welsh Law they are likely to be disappointed. Important though, say, planning law may be, nowhere in the UK do many academics specialize in it. Legal scholars can and should act as critical friends to devolved institutions at a broader level.
The neglect of Wales in research on devolution weakens our general understanding of the UK’s territorial constitution. On-going difficulties of delineating Wales as a legal and political space are revealing about the conventional territorial operating codes of the UK State. Comparison with Wales – a polity without a clearly defined legal system – can improve our understanding of Scotland and Northern Ireland, including the enduring significance of their territorial legal jurisdictions. Anyone interested in the UK’s territorial constitution should pay close attention when the Thomas Commission reports.
Daniel Wincott is Blackwell Professor of Law and Society at Cardiff University and ESRC Leadership Fellow for Governance and Brexit Research (ES/R007500/1). The work on which this blog is based is supported by the ESRC ‘Between two Unions’ Project (ES/P009441/1) led by the Centre on Constitutional Change at the University of Edinburgh.