Silk road to Welsh devolution

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On 3 March The Commission for Devolution in Wales, chaired by Paul Silk, delivered Part II of its report to the national assembly.

Empowerment and Responsibility: Legislative Powers to Strengthen Wales follows Part I, which dealt with tax and borrowing powers. Part II recommends a 10-year reform programme in three phases.

There is broad acceptance of the report across the political spectrum, but doubts exist over how parties will respond. The UK government’s official response is not expected until October, but it said in evidence to Silk that there is no case for ‘radical’ change, so it is expected that it will only implement the report’s minor recommendations before the general election. Plaid Cymru said the report does not represent ‘real progress’, while Labour is thought to be split on the question of devolved policing.

If implemented, the report’s recommendations will further strengthen the identity of legal Wales. Both the Welsh assembly and the Welsh government have had inquiries into whether there should be a separate Welsh legal jurisdiction, although this has been ruled out for at least a decade.

Although academics argue that Wales is already a separate legal jurisdiction, because there is a body of law that applies solely to Wales, the debate now is largely about whether it should have an entirely separate court and criminal justice system. Part II can be seen as laying the groundwork for this.

The kaleidoscope of powers given to devolved UK institutions is hard to understand. They do not even share common names – there is a parliament in Scotland, but there are assemblies in Northern Ireland and Wales.

Members refer to the building in which the Welsh assembly is housed by the Welsh word ‘Senedd’ whether they are speaking in English or Welsh. The literal translation of this word into English is ‘parliament’. The report recommends that if the Welsh assembly wishes to change its name to a parliament, this should be respected.

Little wonder then that the Silk Commission set out to simplify devolution. It recommends that Wales moves from its current conferred powers model (meaning the assembly has specific powers granted to it by the UK parliament) to the reserved powers model which exists in Scotland and Northern Ireland. Under this model powers are held in the Scottish parliament and Northern Ireland assembly, unless specifically reserved to the UK parliament.

Silk considers that this will help clarify the boundary between devolved and non-devolved issues. Blurred lines could be inferred from the fact that, since the Welsh assembly acquired primary law-making powers in 2011, three bills have been referred to the UK Supreme Court (one by the Welsh government’s counsel general) to see if they are within the assembly’s powers. There have been no such references for the Scottish parliament’s legislation since 1999.

To ensure that the Supreme Court has the background to deal with these references, it should have one judge with ‘particular knowledge and understanding of the distinct requirements of Wales’.

Silk also says that High Court and Appeal Court judges allocated to sit in Wales should satisfy the lord chief justice that they understand the ‘distinct requirements’ of Wales in devolved areas.

Silk further recommends that:

the UK government should consult the Welsh government to ensure that the operation of legal aid reflects Welsh circumstances, unless and until legal aid is devolved;
the treatment and rehabilitation of youth offenders should be devolved, as should policing;
feasibility studies should be carried out for devolution of the probation and prison services;
a Welsh Criminal Justice Board should be created; and
there should be administrative devolution in the court system, by reviewing within 10 years the case for devolving legislative responsibility for the court service, sentencing, legal aid, the Crown Prosecution Service and the judiciary.

Keeping up with Welsh assembly legislation has not been easy, not least because the National Archive’s legislation.gov.uk database is not kept fully up to date.

A Welsh assembly member was initially disqualified after the 2011 assembly elections for belonging to a proscribed body. However, his disqualification was lifted when it was realised that he had relied on out-of-date guidance published by the Electoral Commission in Welsh.

To improve transparency, the report recommends improved access to all legislation in all devolved powers through the publication of a consolidated body of Welsh primary and secondary legislation.

Recognising that there is now a distinct and growing body of law whose territorial application is confined to Wales, it is recommended that Welsh ministers should also be able to propose law reform projects to the Law Commission in the same way as UK ministers.

Part II also endorses the view that the unusual, if not unique, situation of having one jurisdiction – England and Wales – with a body of law and legislature confined in its territorial application to one part of that jurisdiction – Wales – inevitably leads to a separate legal jurisdiction for Wales. It reflects the tenor of inquiries by the Welsh government and assembly, that although a separate Welsh legal jurisdiction might be the inevitable destination, it takes time and incremental change to reach it.

A start can be made by devolving those areas, such as policing and youth justice, where there are already close ties with local authorities and devolved institutions, and by laying down a timetable for devolution of the court and criminal justice system.

Uncertainty remains. Political parties will set out their plans for Welsh devolution in their 2015 general election manifestos. Whether there will have to be a separate legal profession and differentiated legal education and training for Wales are questions that have been left for another day.

Richard Owen is Law Clinic director in the School of Law at the University of Essex, and a member of the Law Society Wales Committee