Since 1998, devolution in Wales has evolved progressively. The changes have been dynamic and extensive. The Government of Wales Act 2006 represents a landmark in Welsh history: formally separating the devolved executive from the legislature, and providing the people of Wales with an opportunity to decide, which they did in March 2011, for their Assembly to have broad primary legislative powers for the first time in over 600 years.

The 2006 act is not necessarily the final step on this journey. We must ensure devolution keeps pace with and continues to reflect the needs, interests and aspirations of the Welsh people. One of the focal points of my work has been to facilitate a full and open debate on whether and when Wales should become a separate legal jurisdiction. But what is a separate legal jurisdiction and how would we go about establishing one? In April this year, the first minister and I launched a consultation seeking views on these questions.

The existence and extent of the powers and responsibilities of the devolved legislature and executive in Wales are key considerations. One of the most prominent responses to our consultation was the belief that a separate jurisdiction in Wales without a distinct court system would be like, to quote one respondent, ‘a cart without a horse’. So it was argued that you would expect to see: a Welsh judiciary; a court structure; a Judicial Appointments Commission; a Courts and Tribunals Administration Service; a Law Commission; and a judicial training board.

Some respondents noted that it is unusual (if not unique) to have two legislatures in the same jurisdiction and with general power to legislate on the same subject matter as part of the same overall body of law. Laws passed for Wales in both Cardiff and Westminster still form part of the corpus of the law of ‘England and Wales’, which can cause confusion. The uniqueness of that situation is apparent if combined with a lack of responsibility on the part of the devolved institutions for the administration of justice. Separating Wales from the existing joint jurisdiction was seen by some as a logical consequence of creating the Assembly in Wales, and certainly its move to enjoy broad and primary legislative competence.

At present, responsibility for administration of justice is generally not devolved to Wales, and remains a matter for the UK government and parliament. For the Welsh government to assume responsibility for these matters would for some represent the single largest addition to its responsibilities since devolution began in 1999. This at a time of acute budgetary pressures, both now and in the foreseeable future, and when we have just lost 20% of our staff through civil service rationalisation.

Can we afford to do this, and 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 of a separate jurisdiction. If 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 separate jurisdiction ‘in principle’ if Welsh ministers and the assembly did not also obtain a reasonably full set of powers in relation to, at least, the administration of justice; on this basis a separate jurisdiction would exist, although significant pillars of the ‘legal system’ would remain the responsibility of the Ministry of Justice and Home Office. We have not pre-judged this issue and are still considering all the options.

For now, it suffices to say that the next few years are likely to be ones of considerable constitutional change.

Theo Huckle QC is counsel general for Wales, Welsh Government