Legal Wales: annual symposium 2007

In this article from the Spring 2008 issue of Directions Richard Owen (University of Glamorgan) reports on the 2007 symposium of Legal Wales, a representative body of lawyers and legal academics set up in 2001.

Since devolution started in 1999 Wales has increasingly been moving in the direction of acquiring a distinct identity as a separate jurisdiction from England. In response to this Legal Wales was established in 2001, a representative body with members drawn from societies and specialist associations representing practising solicitors and barristers as well as academic lawyers in Wales.

Legal Wales’ annual symposium in September 2007 was the first since the coming into force of the Government of Wales Act 2006. The keynote address was given by Carwyn Jones AM, Counsel General to the Welsh Assembly Government, with a further address by Elwyn Llwyd MP on bilingual juries and a talk by Sir David Williams on the challenges ahead for devolution.

Carwyn Jones explained the background to the creation of the post of Counsel General to the Welsh Assembly Government and some of the features of the 2006 Act. Before the post was created it was felt that there was not enough of a bridge between the government and the legal profession. Carwyn Jones proposed a forum meeting quarterly to discuss matters of interest.

The question of what lies within the Assembly’s competence is complex. The Assembly does not have general legislative competence in its devolved areas, known as ‘fields’ – it only acquires legislative competence when a specific ‘matter’ populates a ‘field’. This is a piecemeal approach to devolution, and will inevitably lead to disputes as to whether matters are within or outwith the Assembly’s jurisdiction. The Counsel General assesses whether an issue is within the Assembly’s jurisdiction and can refer matters to the Judicial Committee of the Privy Council or to the Supreme Court.

As devolution beds in the laws of Wales and England are diverging to some extent, leading to signs that Wales may be moving in the direction of a separate jurisdiction. Where the legal environment differs there is a need for local courts so lawyers can explain local conditions to judges. Already the Court of Appeal (Civil Division) has started hearing judicial review cases in Wales when the case originated there. The current coalition partners in the Assembly have committed themselves to considering a separate criminal justice system during the term of the current Assembly.

The Government of Wales Act 2006 makes primary powers available to the Assembly if they are approved in a referendum which the coalition partners have committed themselves to on or before 2011. Carwyn Jones felt that this would inevitably lead to a separate jurisdiction, as he could not think of any precedents for the existence of primary powers without a separate jurisdiction. He also talked of the need to develop a body of lawyers in Wales to do public law work.

Elwyn Llwyd explained that the issue of bilingual juries is under active consideration in Whitehall. He felt that trials purely in the Welsh language will be a rarity, but there will be cases where trials will be better understood when the jury can speak Welsh. He went on to say that as language is full of nuance translation can never be perfect.

The most frequently raised objection to bilingual juries is that it is contrary to the principle of random selection, however there are many historical precedents where jury selection has been limited. Other objections are also now losing their force – the number of solicitors and barristers who can speak Welsh has increased, and Welsh language television has standardised terms so that speakers of different dialects of in South and North Wales can now better understand one another.

Professor Sir David Williams said the problem in Wales is that, unlike in Scotland, devolution is not based on a set of clear principles, and as a result transfers of power occur on an ad hoc basis. He felt that the current system with the National Assembly’s lack of a general legislative competence was unworkable, holding out the hope that the All Wales Constitutional Convention being set up by the current Labour-Plaid Cymru coalition partners means that at last Wales will reach the position envisaged by the 1973 Kilbrandon Report. The only alternative is to scrap the current system and go back to the pre-devolution era.

The appointment of nine ministers for the English regions and the prospect of nine accompanying parliamentary select committees mean that providers of legal education and training in England have much to learn from the experience of devolution in Wales. The Welsh experience suggests that executive devolution leads to pressure for legislative devolution, and if this has only secondary law making powers pressure will continue for primary powers. This in turn creates demands for a separate jurisdiction with demands for locally based lawyers with the appropriate specialised skills in public law. If primary law making powers devolve to Wales and the Welsh experience is replicated in England the UK is headed in the direction of a federal legal system.

Last Modified: 9 July 2010