What is Welsh law and how should it be defined?

Wales has operated within a joint legal jurisdiction with England for nearly 500 years. For centuries, this has worked with relative ease but as the law of Wales and England has increasingly diverged over the 25 years of devolution, there have been growing calls for there to be recognition of a body of Welsh law or for a separate or distinct Welsh legal jurisdiction.

This article explores the arguments made for and against any change, and considers how Welsh law can be defined.  

England and Wales: an anomaly of history?

Wales’ legal history with England can be traced back to the late 13^th century. Reforms in the 16^th century marked a significant step in this process, as the Laws in Wales Acts 1535 and 1542 extended English law to Wales. While there remained some points of difference between England and Wales after these reforms, the abolition of the Court of Great Sessions in 1830 made governance and justice in Wales consistent with that of England.

This differs from the situation in Scotland and Northern Ireland, where each territory has its own legal jurisdiction. It is the courts of these countries which enforce the laws made for them by their legislatures.

Is there such a thing as Welsh law?

This unique historical context means that, in this single legal jurisdiction, some have argued that there can be no such thing as “Welsh law” and that there is only one body of law: the law of England and Wales.

Amendments to the Government of Wales Act 2006 made by the Wales Act 2017 sought to recognise the existence of Welsh law by inserting new section A2, which states:

However, while noting there is a body of Welsh law made by the Senedd and the Welsh Ministers, it still forms part of the law of England and Wales.

While this distinction may not have been a significant issue for the first 450 years of the jurisdiction’s existence, the establishment and development of devolution in Wales has led to questions being asked about whether judicial functions should also be devolved.

One jurisdiction: two legislatures

The establishment of devolution in Wales, and in particular the primary law-making powers the Senedd now has, means there is a growing body of law that applies only in Wales.

While Acts of the Senedd apply only in relation to Wales, they ‘extend’ to England and Wales. This means that courts in England can also deal with litigation concerning laws which apply only in Wales and vice versa.

In practice, this means cases involving issues only relating to Wales could be decided by courts in England and by judges with less experience of Wales or the laws created by the Senedd.

There has been divergence between the law made in the Senedd and the UK Parliament (in relation to England) on matters within the Senedd’s legislative competence, which will likely increase in the future. This divergence has led some politicians, commentators and academics to suggest a change is needed to the jurisdiction as it currently stands.

Options for reform: separate or distinct?

This issue was considered by the then Assembly’s Constitutional and Legislative Affairs Committee and in a Welsh Government consultation in 2012 in light of the Assembly gaining full primary law-making powers in the 2011 referendum. Both concluded it wasn’t the time for change, but discussions about the legal jurisdiction reemerged during consideration of what was to become the Wales Act 2017, and in light of the move to a reserved powers model in 2018.

Two options have been put forward for change. Some have called for a complete separation of England and Wales as law districts, with separate courts systems, legal professions and devolution of the administration of justice. For example, the Welsh Government published the draft Government and Laws in Wales Bill in 2016, which proposed the complete separation of Wales and England as legal jurisdictions.

An alternative would be to move towards a ‘distinct’ jurisdiction, which would recognise the divergence between the law of Wales and the law of England, while maintaining a unified system of judicial administration. It has been argued this could remove some of the “inconveniences which such complete separation would cause” as a result of a considerable amount of law continuing to apply in both countries, while also recognising the expansion of the divergent bodies of law.

Maintaining the status quo

The UK Government has strongly advocated for continuing the England and Wales jurisdiction, arguing “a single jurisdiction is the most effective way to deliver justice across England and Wales”.

When discussions about the future of the jurisdiction were live during development of the Wales Act 2017, the then Secretary of State for Wales, Stephen Crabb MP, said:

With the Assembly being given full law-making powers in 2011, there is now a growing body of distinct Welsh law. At present, this makes up a tiny fraction of the overall body of law for England and Wales which has developed over 500 years of legal history.

The UK Government has also highlighted the potential costs of creating a Welsh jurisdiction as a reason to maintain the status quo. Former Under-Secretary of State for Justice, Chris Philp MP, referenced estimates made by the Silk Commission in 2014 that “the extra incremental cost of creating a separate jurisdiction would be about £100 million a year”.

Professor Richard Owen argued in 2016 that finding the law that is only applicable to Wales can be “challenging to say the least”. Laws that apply only to Wales are intertwined with those that apply throughout England and Wales. This issue could become more complex in light of the increased volume of UK Bills legislating in devolved areas.

Former Counsel General for Wales, Theo Huckle KC, also noted the challenge that would come from pursuing a separate legal jurisdiction without the Welsh Ministers and the Senedd obtaining powers relating to the administration of justice. The Commission on Justice in Wales, established by the Welsh Government in 2017, recommended that powers over justice should be wholly devolved to the Senedd and Welsh Government.

Where next for this question?

While the Welsh Government supports the devolution of justice, any changes would require the support of the UK Government and legislation in the UK Parliament.

As divergence between the law that applies in Wales and the law that applies in England continues to grow, questions about whether to maintain a centuries old joint legal jurisdiction are unlikely to go away.

Article by Josh Hayman, Senedd Research, Welsh Parliament