The case for Wales having its own legal jurisdiction could be “considerably weakened” if policing and justice were not devolved, the Welsh Government’s chief legal advisor warned last night.
Counsel General for Wales Theodore Huckle QC also questioned the affordability of establishing a separate legal system in Wales in a speech to the Society of Legal Scholars at Cardiff Law School, as the Welsh Government published the first responses to a consultation launched earlier this year.
Mr Huckle also echoed Carwyn Jones’ call for a Welsh judge to sit on the Supreme Court, branding the absence of a Welsh presence “unacceptable”.
In a speech to the Society of Legal Scholars at Cardiff Law School, Mr Huckle said many respondents to the consultation on a separate Welsh legal jurisdiction acknowledged that a separate Welsh jurisdiction will be required at some stage in the future and that “preparatory steps are desirable now in order to facilitate this change”.
“The case for establishing a separate legal jurisdiction is intimately related to the developing constitutional position of the UK, and Wales’ place within it,” he said.
“One of the most prominent themes in the responses to the consultation was the belief that a separate legal jurisdiction in Wales without a distinct court system would be like, to quote one respondent: ‘a cart without a horse’.”
He said respondents had drawn attention to increasing divergence of Welsh law and English law and that it would continue as the Assembly legislated in devolved areas.
He added: “The current joint jurisdiction may well gradually come to be seen as untenable over time, thus strengthening the need for a Welsh legal jurisdiction sooner rather than later to avoid a purely reactive and passive response to this inevitable legal and practical development.”
Wales’ most senior lawyer said that the devolution of policing and criminal justice powers to the Welsh Government and the Assembly would represent the single largest addition of responsibilities since the advent of devolution in 1999.
His comments come as the Silk Commission, which was formed to examine the devolution set-up in Wales and the extent of powers that Wales should have, prepares to publish its first report on financial accountability next week. It will also begin Part II of its process, which will examine powers of the National Assembly.
Mr Huckle said that the Welsh Government would respond early next year to the Commission’s call for evidence, and that the conclusions on the consultation on a separate legal jurisdiction would form part of that.
But, emphasising that it had not prejudged the issue, he said: “Can we afford to do this, at a time of acute budgetary pressures, both now and in the foreseeable future, and coming at a time when we have just lost 20% of our staff through civil service rationalisation?
“Can we be confident, with the resources we can deploy, that the quality of service provided for people in Wales can be maintained or enhanced?
“The answer to these questions is crucial to the related, but separate, question as to a separate legal jurisdiction. If, for whatever reason, the Welsh Government cannot at present move forward with proposals for taking on policing and justice responsibilities, the case for a separate legal jurisdiction may be considerably weakened.
“It would be of limited or even dubious worth pursuing a separate legal jurisdiction “in principle” if Welsh Ministers and the Assembly did not also obtain a reasonably full set of powers in relation to justice.”
Mr Huckle also slammed the absence of a Welsh judge in the Supreme Court, echoing comments made by Carwyn Jones last week calling for Welsh representation.
It follows Mr Huckle’s appearance in the court for the Welsh Government to defend the Local Government Byelaws (Wales) Bill, which the Attorney General Dominic Grieve had argued had breached the Assembly’s competence.
He also reiterated a call for the continuation of Welsh representation on the Judicial Appointments Commission, arguing that his calls for representation to be required by statutes had “fallen on deaf ears”.
He said: “Wales is the only part of the UK, with its own legislature, not formally represented in membership of the Supreme Court. That position should not be allowed to continue, regardless of whether we move to a separate legal jurisdiction for Wales.
“We are currently awaiting the judgement of the Supreme Court case on the Local Government Byelaws Bill. That case was heard in the Supreme Court without the benefit of a Welsh judge on the bench; we do not find this acceptable.
“I was repeatedly called upon to take the court through the development of Welsh devolution in some detail.”