Distinct, Not Separate

Introduction

A distinct legal jurisdiction and a separate legal jurisdiction are definitions of two very different levels of legal autonomy, with vastly different implications for the operation and perception of the jurisdiction of England and Wales.

Unhelpfully, these differing definitions often get conflated in the context of Welsh devolution.

In advance of the expected political changes that will occur as a result of the 2026 Senedd election, there is a need for the Law Society of England and Wales to clarify and solidify its position on these two differing positions, as well as setting out the criteria around which qualified support could be given on the future devolution of some justice functions currently exercised by the MoJ.

Historical context

Welsh political devolution has been in operation since 1999 and the Senedd (Welsh Parliament) gained primary law-making powers in 2011.

Since 2011 the Senedd has developed its own body of over 90 distinct laws, tailored to specific Welsh needs and priorities, while still operating within the broader framework of the England and Wales jurisdiction.

Wales has the power to create and enforce its own legislation in devolved areas, such as health, education, economic and environmental policy, but continues to share certain overarching legal structures with England, including a unified judiciary, legal profession, and court system.

This approach allows for legal innovation and responsiveness to Welsh needs, without completely severing ties to the existing England and Wales legal infrastructure.

Distinct jurisdiction

As a matter of absolute fact, there currently exists a body of primary Wales only legislation passed by the Senedd that are distinct from the laws that operate in England.

This body of distinctly Welsh law currently stands at over 90 Acts of Senedd Cymru.

Now, in advance of the 2026 Senedd election, is the time for the National Board for Wales of the Law Society of England and Wales to formally recognise this distinct body of Welsh law and the principle of the established Welsh devolutionary settlement.

Separate jurisdiction

In contrast to a distinct jurisdiction, a separate legal jurisdiction is very different and would involve Wales establishing an entirely independent legal system, with its own courts, judiciary, and legal profession, separate from England.

Resultingly, Wales would no longer share any legal structures with England, operating a fully autonomous system akin to the relationship between Scotland and England.

While a separate jurisdiction would grant Wales greater control over its legal affairs, it would also require significant investment in new institutions, staffing and resources, create potential complexities for cross-border legal matters, and could lead to fragmentation and create significant issues in the delivery and maintenance of justice in Wales.

As such, this is not a development that should be supported by the Law Society of England and Wales.

The Law Society position

The Law Society Council and the National Board for Wales welcomes, accepts and supports the current distinct jurisdiction that operates under settled Welsh devolution arrangements but does not support a move towards a separate jurisdiction.

The current distinct jurisdiction arrangements work remarkably well and allow for devolved law-making within a shared framework.

Furthermore, the Law Society believes that any further devolution of justice functions, such as youth justice and probation, which were promised in the recent UK Labour Party General Election manifesto, must meet the following “red lines” if there is to be support from the Law Society:

• a commitment to full funding from UK Treasury (i.e. a full Barnett consequential of spending in England) and meaningful intergovernmental collaboration and consultation with the legal sector to ensure its success.
• the maintenance of the ability of solicitors in Wales and England to practise across the border without restriction.
• the preservation of a current single regulatory framework for solicitors across Wales and England.

The Law Society recognises the strength of promoting the single jurisdiction of England and Wales on the world stage, and the reputation of Wales and England as a global legal centre, whilst recognising the unique social, economic, political, linguistic and cultural circumstances that require a distinct body of Welsh law.

In that regard, the Law Society welcomes Welsh Government’s recognition of the need for them to be proactive in developing a jurisdictional solution to accommodate Welsh law and the distinct needs of Wales without creating barriers for the operation of justice or the ability of practitioners to work across Wales and England.

Conclusion

The Council of the Law Society and the National Board for Wales welcomes, recognises and supports the growing distinct jurisdiction of Welsh law as currently operates as part of the established devolution settlement for Wales.

What the Law Society does not support are policy movements designed to bring about a future separation of the jurisdiction of England and Wales into two separate operational spheres.