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Time for a Welsh jurisdiction?

21 March 2018
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The conquest of Wales in 1282

According to the National Assembly for Wales (the Assembly), the roots of devolution in Wales can be traced back to 1886 when the Cymru Fydd party was established to campaign in favour of Welsh home rule. Disquiet in Wales against rule from London goes back to the conquest of Wales by King Edward I in 1282. Modern efforts to restore power to Wales are less bloody than those of the middle ages and the last 20 years have seen the transition of a level of power not held in Wales for several hundred years. What does devolution in Wales mean in practical terms?

The legislature and executive in Wales

The first elections to the Assembly were held in 1999 and it has four roles:

  • representing Wales and her people
  • making laws for Wales
  • agreeing Welsh taxes
  • since the Assembly's formal separation from the Welsh government, holding the Welsh government to account.

There are 20 devolved areas in Wales set out in Schedule 7 to the Government of Wales Act 2006. These cover local matters such as culture, education, housing and tourism.

The Wales Act 2017 changes the balance of power

The Wales Act 2017 was enacted by the UK government in 2017. It gives the Assembly powers over its own electoral and internal arrangements and changes the balance of power between the Welsh and UK governments. The changes give the Welsh government the power to legislate on all areas of the devolved matters unless the UK government has reserved power in respect of a specific area. The Wales Act significantly increases the powers of the Welsh government and brings the system in Wales into line with the devolution systems in Scotland and Northern Ireland.

From April 2018 the Welsh government will have powers in areas such as energy, planning, roads and harbours.

Welsh Law

The term "Welsh Law" is increasingly being used to describe the body of law made by the Assembly and Welsh government as the law in Wales diverges from England. Devolved areas that have seen significant divergence from English law include education, housing, planning and stamp duty land tax – aka land transaction tax as it is to shortly become in Wales.

This divergence between laws within the confines of one jurisdiction brings challenges, especially with regard to the accessibility of Welsh law. It can be extremely difficult to find out what the law is in Wales. Many pieces of legislation have been made by the Welsh government and these must often be read with non-devolved legislation to understand the law in Wales. With an increasing body of law applicable to Wales there is a clear need to ensure that this is made readily accessible to those living, working and doing business in Wales.

Creating a Parliament for Wales

Against this backdrop of increased powers and divergence in laws, on 12 February 2018 the Assembly opened the consultation "Creating a Parliament for Wales". This consultation is seeking views on a number of proposals regarding the organisation and running of the Assembly – or Parliament as it will become. This consultation asks for views on proposed changes regarding the size of the Assembly, how members are elected, the minimum age for voting and who can vote in Assembly elections as well as some administrative and internal arrangements.

The proposed move away from established voting systems and changes to the age and categories of persons eligible to vote would be another area of significant divergence from England. The changes to these issues, if implemented, would only serve to highlight that the systems in England and Wales are rapidly and fundamentally moving away from one another.

The post-Brexit controversy, will Wales get more powers?

Brexit only complicates things further. Some devolved matters such as agriculture and fisheries, the environment and regional development, are currently subject to EU powers that will return to Westminster. Currently, Wales is free to legislate upon these areas subject to ensuring compliance with EU law.

The treatment of these areas post-Brexit has been a highly controversial issue. It is currently anticipated that the UK government will include provisions in the EU Withdrawal Bill to transfer these powers directly to the devolved administration, further increasing the power held in Wales. But the Welsh government has expressed unwillingness to support the Bill, stating that the Bill is undermining the devolution settlement in Wales. Debate will probably continue for some time yet.

Time for a Welsh jurisdiction?

In the face of exponentially increasing power vested in the Welsh administration and significant and growing divergence between the laws and, potentially voting systems, applicable in England and Wales, there is a growing argument for the next step in the devolution process to be the creation of a separate legal jurisdiction for Wales. The creation of the jurisdiction of Wales is beginning to feel like a matter of when and not if.

Have your say on the Creating a Parliament for Wales consultation, open till 6 April 2018.  

 

Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society. 

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About the author

Emily Powell is a Partner at Hugh James specialising in procurement, state aid and defence. Hugh James is the largest indigenous Welsh law firm

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