Building a Welsh Jurisdiction Through Administrative Justice

Abstract

In light of the current debate around establishing a separate or distinct legal jurisdiction for Wales, the aim of this chapter is to highlight that administrative justice is an area where differences in the administration of justice are already occurring in Wales as compared to England and other parts of the UK. In particular the chapter will focus on devolved tribunals in Wales and comparable tribunal reforms in other devolved parts of the UK. I consider the ongoing development of the devolved Welsh tribunals and the place of these institutions in debates surrounding a future Welsh legal jurisdiction. BackgroundDevolution, and discussions regarding the appropriate constitutional settlement for Wales, have undergone considerable development since the enactment of the Government of Wales Act 1998. The 1998 Act established a National Assembly for Wales as a corporate body with executive functions over 18 devolved fields. 1 Subsequent developments included the introduction of a form of attenuated legislative powers devolved to the Assembly through Part 3 of the Government of Wales Act 2006, and full legislative powers through Part 4 of the same Act over 21 devolved subjects, though retaining the original conferred powers model. Throughout the process of the reforms, there was no intention to affect the unified England and Wales legal jurisdiction. The explanatory notes to the 2006 Act state that: 339[Wales] forms part of a single unified England and Wales jurisdiction with a common courts system, judges who can act throughout the two countries and lawyers who are educated and who practice in a way which does not distinguish between England and Wales. There is no intention to change this. 2 However, as Sir Gary Hickinbottom has noted, despite the single legal jurisdiction, to consider justice as completely undevolved would be rather 'simplistic and misleading'. 3 In the field of administrative justice, and of devolved tribunals in particular, elements of a separate Welsh jurisdiction are already evident. 4 The aims of this chapter are first, to use the Welsh tribunals as a prism through which to identify elements of a Welsh jurisdiction and second, to examine how reforms to devolved tribunals might contribute to the shaping of a broader Welsh legal system.As noted by the Administrative Justice and Tribunals Council (AJTC):Welsh tribunals are still insufficiently recognised as part of an independent justice system and it remains to be seen how aspirations for a Welsh justice system may take shape. 5 The jurisdiction debate in WalesIn 2008, Carwyn Jones AM, who was Counsel General at the time, highlighted that Wales could be in a relatively unique position of having primary law making powers but no unique legal jurisdiction under which to challenge or enforce those laws. 340 …if a situation arises whereby the Assembly has primary law making powers, it is inevitable, in my opinion, that we will have to have a debate on whether or not to retain a single unified jurisdiction for England and Wales. I'm not aware of an...