6. What are the implications for Wales of adopting a distinctive justice system which is truly representative of Welsh needs? (OAQ51154)

The First Minister announced on 18 September that he was setting up a commission on justice in Wales to review the justice system and policing and to consider how the system can achieve better outcomes for Wales.

I thank the Counsel General for that answer. I know it’s the ambition of the Welsh Government to have a separate justice system in Wales. Wales has been incorporated into a fused jurisdiction for 600 years, and its history is very different, therefore, from Scotland and Ireland, including Northern Ireland. And, whilst there may come a time when there are significant divergences between the law as it applies in Wales and in England, we’re a very long way from that as yet, and therefore it would be important, if we’re going to keep the costs of the law in proportion, to proceed slowly in this respect. And in particular insofar as the regulation of the legal profession is concerned, does the Counsel General agree with me that it is certainly premature to think of splitting off the regulation of solicitors or members of the Bar—and I declare an interest as a member of the Bar myself, in this respect—from the one that currently exists in the jurisdiction of England and Wales?

The first thing is, in terms of the ambition for a separate justice system, which you referred to, the ambition actually is related to the proper and most effective administration of justice. One of the complications, as I’ve said before, over the arguments over a separate jurisdiction are that it has almost achieved some sort of philosophical and catechismal status. A jurisdiction is really just an area where you have laws being made, and having one jurisdiction when there was just one parliament making law made sense; where you have another parliament making laws, it’s important that the system for the administration of justice actually reflects that.

You make a valid point in respect of the scale of that, the extent, but of course the extent of divergence is not just in terms of the legislation we pass, but also the legislation that is passed in England as well that doesn’t apply to Wales. One of the ways of looking at this, which was, in fact, referred to some while back was a distinct jurisdiction. That is, not about taking over the judiciary, taking over the courts, the buildings, the personnel, but purely a system whereby you ensure that, if a case involves Welsh law, it is heard in Wales by judges and with lawyers and advocates who actually understand Welsh law. So that, I think, is the correct framework within which to look at that.

In terms of regulation per se and the regulatory bodies for lawyers and, of course, the many non-lawyers who now work within legal services and the broader legal profession, I don’t think there’s ever been any case of putting up barriers. I think it is one of the perceptions I think it’s very important we avoid allowing to be created. We do not want to have barriers, we do not want to see barriers to Welsh lawyers being able to practise in England or English lawyers being able to practise within Wales, but it is solely about how you actually ensure that, firstly, lawyers practising in Wales do have the proper qualifications and knowledge of Welsh laws. I think the same actually will apply in respect of practising within England, and understanding what those differences are. There was an article—I don’t know if it’s the one the Member is referring to—that appeared, I think, in ‘The Law Society Gazette’ that said, ‘Now is not the time to split off’. It has never been a question of splitting off; that I think is a complete misunderstanding of what the development of a jurisdiction actually is. It is about the administration of law but not one where we want to have any perceptions of division, just ensuring that, where Welsh laws are involved, that the lawyers involved and the judiciary involved have been properly trained, and understanding what those laws actually are.

I wonder whether the Counsel General would accept this contention that regarding the devolution of justice and distinct legal jurisdiction as an entirely discrete competence is actually a false distinction, and that it is better seen as part of a continuum where this place makes laws, and, in order for them to be properly implemented and enforced, it’s a question of a continuum between the passing of the law and the enforcement of the law. So, the absence of devolution of justice and a distinct legal jurisdiction in fact operates as a constraint on the devolution of other powers. Would he accept that contention?

I do, and I think the point you make is an extremely important one because it goes to the root of the misunderstanding of the issues of jurisdiction and the divergence between Welsh law and English law. It is not a question of saying who should have the jurisdiction—should it be the UK Parliament, should it be the Welsh Assembly, or whatever; it’s a recognition of what the law actually is and how it interlinks with policy. So, the issues to do with policing, to do with youth justice, to do with prison and probation are not because they are a matter of saying, ‘Wouldn’t it nice to actually have these?’, but because the Assembly has responsibility for that policy, you cannot avoid the consequence of how that interreacts with the justice system itself. It is to actually have an integral relationship between them so that justice policy is then reflected in the justice system itself. I think that is an argument that needs to be explored, and that is why I’m extremely pleased that the former Lord Chief Justice, Lord Thomas of Cwmgiedd, has accepted the chairmanship of the justice commission that the First Minister is setting up, which I hope will have a broad remit to examine all those areas, not just in terms of jurisdiction but the interrelationship between policy and the law, the interrelationship between what we do and how that impacts on the justice system itself.

Thank you, Counsel General.