Jack Straw gave a speech in Cardiff on Thursday evening on ‘The Administration of Justice in Wales’, at an event organised by the Law Society. The text is available here. There was one howler in an otherwise pretty impressive speech, which dodged all the difficult points (like bilingual juries and prison provision in north Wales) very adroitly and made much of what the Government can claim as achievements.
The howler concerned the idea of a separate legal jurisdiction for Wales. This idea has increasing currency among academic and practising lawyers and the judiciary in Wales, concerned at the problems of managing increasing differences in the rules that apply each side of the border. Although it’s an idea that attracts Plaid Cymru, support goes a long way across the political spectrum, and it has been embraced by the Counsel General for Wales (and new Labour leader) Carwyn Jones. Creating it is far from straightforward, and as it would need primary legislation at Westminster there’s little likelihood of it happening in the immediate future. But it is firmly on the agenda, as devolution in Wales develops.
Straw is firmly opposed to such developments. He argued that the existing arrangements are able to cope in a practical and ‘organically; developing way with the challenges presented by different rules of law in Wales, and that there was no need for a separate legal jurisdiction. That’s fair enough. Straw also acknowledged that the decision was one for the people of Wales. But he added that creating such a jurisdiction was such a major step that it would require the approval of the Welsh electorate by a referendum, though he emphasised this was a personal not a UK Government view.
The suggestion that a referendum is needed for what’s very largely a technical matter and not a constitutional one is bizarre. It’s hard to think of a precedent for it anywhere in the common-law world. In most cases, the establishment of a legal jurisdiction has been part of the process of establishing a local legislature; that’s the pattern in settler states like Canada or Australia, for example. In the case of Northern Ireland, it happened automatically as part of the process of partitioning Ireland in 1922, with the creation of the Irish Free State as (initially) a dominion within the British Empire, and Northern Ireland as a self-governing part of the United Kingdom with legislative powers conferred on the Parliament of Northern Ireland. In that context, it’s hard to see how such a suggestion follows any recent precedent.
And think about the practicalities of such a referendum. This is an archetypal issue for lawyers. If a referendum were to be held, it would be almost impossible even to explain the issue to the public, let alone persuade them to turn out and vote.
It’s hard to regard this as an attempt to obstruct any move toward a legal jurisdiction – despite the range of professional support for the idea. But, given the difficulties that a referendum on the primary legislative powers in Part 4 of the Government of Wales 2006 presents, this looks like an attempt to create a ‘neverendum’ strategy by Labour in London for a Welsh devolution. And it’s at odds with the position Labour has taken about a referendum on constitutional issues in Scotland, notably independence.
This suggestion attracted great concern in the room, provoking questions from Richard Wyn Jones of Cardiff University, Adam Price MP and myself. It’s a wonder who advised Straw to raise such an issue, which both set several hares running and marred the reception of an otherwise rather impressive speech.