Commission on Justice in Wales Submission by Professor R. Gwynedd Parry Department of Welsh, Academi Hywel Teifi, Swansea University. Saturn is fallen, am I too to fall? Am I to leave this haven of my rest, This cradle of my glory, this soft clime, This calm luxuriance of blissful light, These crystalline pavilions, and pure fanes, Of all my lucent empire?1 1. I am grateful for the invitation to submit evidence to the Commission. The justice system in Wales has been a constant in my research over the years.2 In 2012, I published a monograph in the Welsh language which addressed key themes in the development of the law in contemporary Wales.3 In the recent past, I have submitted evidence to consultations initiated by the Welsh Government and the National Assembly for Wales on the subject of a separate jurisdiction for Wales. Last year, I published an article in the Irish Jurist on the same subject in the light of recent legislative developments.4 Much of this submission is based on that publication. 2. I must therefore apologise if what follows has a ring of familiarity to some members of the Commission. However, and without unnecessary repetition, I shall succinctly summarise what I regard as being the overarching issue facing the Commission. 1 Extract from Hyperion by John Keats. 2 For example: R. Gwynedd Parry, “The Council of Legal Education in Wales: an idea whose time has come?” in Emőd Veress (ed.) Multilingualism and Law (Cluj-Napoca: Sapientia University Publishing, 2016), pp. 49- 65; R. Gwynedd Parry, “The Three Ages of Legal Scholarship in Wales” in T. G. Watkin (ed.) The Carno Poisonings and Other Essays, (WLHS, 2013), pp. 49-71; R. Gwynedd Parry, “Bilingual Legal Scholarship in Wales: Historical and Contemporary Perspectives” in Xabier Arzoz (ed.), Bilingual Higher Education in the Legal Context: Group Rights, State Policies and Globalisation (Leiden: Martinus Nijhoff, 2012), pp. 215-257. R. Gwynedd Parry, “Rheithgorau Dwyieithog: Penbleth Geltaidd?” (2011) (9) Gwerddon http://www.gwerddon.org; R. Gwynedd Parry, “Higher education and Article 8.1.e of the European Charter for Regional or Minority Languages: a Welsh ‘opportunity avoided’?” in Parry RG and Dunbar R, eds., The European Charter for Regional or Minority Languages: Legal Challenges and Opportunities (Strasbourg: Council of Europe Publishing, 2008), pp. 253-75; R. Gwynedd Parry, "An important obligation of citizenship: language, citizenship and jury service", (2007) 27 (2) Legal Studies 188-215; R. Gwynedd Parry, "Beth yw Trosedd? Golwg ar yr Elfennau Sylfaenol.", (2004) 3 Cylchgrawn Cyfraith a Pholisi Cymru 223-236; R. Gwynedd Parry, "Random Selection, Linguistic Rights and the Jury Trial in Wales" [2002] Criminal Law Review 805-816; R. Gwynedd Parry, "Hyrwyddo'r Gymraeg ym Myd y Gyfraith- Beth yw Cyfraniad Adrannau Cyfraith y Brifysgol?", (2002) 1 Cylchgrawn Cyfraith Cymru 387-395; R. Gwynedd Parry, "Yr Iaith Gymraeg a'r Tribiwnlys Apêl Cyflogaeth - ystyried y penderfyniad yn Williams v. Cowell", (2001) 1 Cylchgrawn Cyfraith Cymru 178-182. 3 R. Gwynedd Parry, Cymru’r Gyfraith: Sylwadau ar Hunaniaeth Gyfreithiol (Caerdydd: Gwasg Prifysgol Cymru, 2012). 4 R. Gwynedd Parry, “Is breaking up hard to do? The case for a separate Welsh jurisdiction” (2017) 57 The Irish Jurist, 61-93. 1 3. The Commission’s terms of reference are broad, and rightly so. There are many specific matters relating to the administration of justice in Wales which warrant examination. My own interest lies in the legal infrastructure and in the mechanisms whereby justice issues can be considered and debated, and policy can be devised and implemented. By infrastructure I mean legal institutions and structures, and authority for justice policy. More specifically, I believe that the most important question facing the Commission is whether the legal system in Wales can continue, to all meaningful purposes, as an English circuit, or whether the time has come for Wales to have the legal architecture that befits a self-governing nation within the United Kingdom. Should Wales have the same or similar legal institutions and legal autonomy as Scotland and Northern Ireland? In my opinion, it is when this is answered that all the other myriad issues facing justice in Wales can be addressed. 4. The imprints of the past bear heavily on the current constitutional arrangements in relation to the administration of justice in Wales. The Tudor reforms of the sixteenth century intensified the annexation of Wales by England. By the middle of the nineteenth century, Wales was fully incorporated into the English legal system. That remains the bottom line constitutionally in so far as the legal system is concerned. Of course, there never existed a “union” between England and Wales, but conquest followed by annexation. The present legal jurisdiction of England (and Wales) is the product of this historical legacy and continues, fundamentally, and despite a few recent concessions, to function on this premise. 5. This is not to deny those notable examples of legal devolution in recent years. A good example has been the Administrative Court in Wales, which has ensured that judicial reviews of the actions of the Welsh Government or the National Assembly have been heard in Wales. The creation of the unified Courts and Tribunals Service in 2011, and the establishing of the Office of President of the Welsh Tribunals in 2017, are other examples. But these innovations exist within the centuries-old paradigm of the unified jurisdiction. 6. Therein lies the problem. Wales is no longer, constitutionally or politically, annexed by England. Constitutionally, there has been a change from a state of “annexation” to that of a “union”. But rather like the royal standard or the union flag, the unified jurisdiction of England and Wales does not reflect this change and operates on that basis which was infamously stated in the Encyclopaedia Britannica and quoted by Professor Thomas Watkin in his submission to this Commission: “for Wales see England”. 7. Perhaps the change from “annexation” to “union” requires further explanation. On the 3rd March 2011 the people of Wales declared in a referendum, instigated in accordance with the Government of Wales Act (UK) 2006, that the National Assembly for Wales should serve as a primary law maker, or legislature, for Wales.5 The 1998 Act (UK) had established a limited form of executive devolution, with powers to make secondary or subordinate legislation and to exercise executive powers.6 The 2006 Act, however, created the means for legislative devolution and 5 Thereby implementing the recommendations in the All Wales Convention Report (Crown Copyright, 2009). 6 See Vernon Bogdanor, Devolution in the United Kingdom (Oxford: Oxford University Press, 1999), p. 254. 2 also ensured the constitutional separation of the Welsh Government and the National Assembly consistent with a parliamentary model of government.7 8. But perhaps the actual moment when a state of “union” came into existence was with the passing of the Wales Act 2017. The Act places two important principles on a statutory footing, principles which negate any idea that the National Assembly is merely a subsidiary of the Westminster parliament. The first relates to the permanence of the Assembly and the Welsh Government. The Act states that the Assembly and the Welsh Government will not be abolished without the people of Wales voting for that course of action in a referendum.8 The second principle is that the Westminster parliament will not normally legislate with regard to devolved matters without the consent of the National Assembly for Wales.9 These principles effectively render the doctrine of parliamentary sovereignty redundant on devolved powers, and create a new constitutional model based on popular sovereignty.10 In the parlance of another age we would say that Wales now has ‘Home Rule’ within the United Kingdom. This has changed completely the constitutional relationship between Wales and England, and Wales’s place within the Union. It may even be said that it is the first true “act of union” in Welsh history in that it recognises the sovereignty of the Welsh nation within the Union. 9. Despite this, there exists some resistance to recognise this fundamental change to Wales’s constitutional status. Rather like the Titans in Keats’s poem, some struggle to come to terms with it all. The entire notion of self-government for Wales, or even Welsh nationhood itself, can be a source of anxiety. Wales is wonderfully sui generis, it is implied, and should be well pleased not to have the sort of legal institutions enjoyed by the other self-governing nations or autonomous regions of the world. 10. The Commission must see all of that for what it is. The issue now is not whether Wales is a nation, is sufficiently different from England, or whether legislative devolution is a good thing or a bad thing: these are all matters resolved by democratic mandate and the law. What matters now is whether the continuation of a single jurisdiction of England and Wales (that is, England with Wales subsumed within it) can be said to be constitutionally acceptable. 11. In the meantime, a body of law which applies only in Wales is increasing. Already, divergence in key areas of policy is creating legal divergence between England and Wales, especially in the fields of planning, housing and education law. The Wales Act 2014 conferred tax-raising powers on the National Assembly, powers that increase with the Wales Act 2017. The divergence between laws in Wales and laws in England is also driven by legislative provisions made for England in Westminster that do not apply in Wales.11 Westminster statutes may be amended both by the Westminster 7 See Dafydd Elis-Thomas, “From Body Corporate to Parliamentary Service” (2005) 4 Wales Journal of Law and Policy, 12.