A story in March that slipped under the radar somewhat in the wake of the publication of a number of judicial diversity reports, was of the on-going consultation into the possibility of Wales becoming a separate legal jurisdiction. The consultation follows the March 2011 referendum, when there was a Yes vote for Welsh Assembly powers to pass primary legislation in all devolved areas. The consultation paper’s stated aims are to seek views on:

“What is meant by the term separate legal jurisdiction;

Whether there are any essential features for the existence of a separate legal jurisdiction and, if so, what they might be;

What the consequences of having a separate Welsh Jurisdiction might be;

What the potential advantages and disadvantages of a separate Welsh jurisdiction might be.”

The consultation paper provides some interesting historical background; prior to the conquest of Wales by Edward I of England (also known as Edward Longshanks, who according to legend promised the Welsh a “Prince of Wales” who did not speak a word of English” and then produced his infant son) in 1282-3, Wales and England were separate countries with different laws and legal traditions. Prominent differences included the practice of settling debts by arbitration and the rules on inheritance whereby a man’s land would be divided equally amongst his sons after his death, rather than passing to the eldest. The jurisdictions of England and Wales were merged by the Laws in Wales Acts 1536 and 1542, which created a common legal jurisdiction across Wales that applied English law exclusively.

The establishment of a separate Welsh jurisdiction is unlikely to entail a return to the laws of Llywelyn ap Gruffydd. In an interview with The Guardian Theodore Huckle, Wales’ Counsel General, said “There’s no justice ministry in Wales. It’s a matter of looking at what aspects of justice should be devolved. Apart from justice, all the major areas which affect the lives of citizens in Wales are already fully devolved.” Both the criminal and civil divisions sit in Wales for three weeks of the year and it has been suggested that there should be a Welsh division, “A lot of law is still to be found in statutes that are common to England and Wales but then you have specific provisions that have arisen in a Welsh context. So judges have to look at both areas of law”. Huckle suggested that there should be a Welsh representative in the Supreme Court, which currently has one justice from Northern Ireland, two from Scotland but none from Wales. That does bring up the difficulty of identifying a Welsh Judge given that by definition England and Wales are the same jurisdiction, but Huckle appears to suggest a variation of the ‘elephant test’, dismissed by the Supreme Court in the case of Lucasfilm, “We say we know one when we see one.”