More jobs for lawyers? Yes, please!
If you knew there was a knowledge industry here in Wales suffering because of unequal competition elsewhere in the UK. If you knew that we trained up some of our best brains in the industry, only to see them work in London and not in Wales. If you knew that the industry’s turnover was being sucked out of the country because of a skewed market. Then you may think that Welsh Government and the National Assembly should do all they could to remove inequalities, stop the brain drain and get the market right.
There is such an industry and we can do something to help it. Legal services, lawyers and the law are one of the pillars of our democracy. They also form a real knowledge economy that trades in skills, expertise and services but which is undermined by an unequal market.
Currently the three million inhabitants of Wales are part of the English legal system. Recently the fashion has been to refer to this as the England and Wales jurisdiction. But to all intents and purposes since the Acts of Union, English law has applied in Wales and it has been an English jurisdiction, though separate Welsh courts (the Great Sessions) did run up until the 1830s. During this time Welsh legal cases slowly drained to London, together with many fine Welsh legal brains, and English law applied in Wales.
Slowly, since the Aberdare Education Act in the 1880s, a legislative concept of Wales as a distinct territory has emerged. Sunday Closing, Church Disestablishment and the Welsh language entailed Wales only legislation The establishment of the National Assembly, and full legislative powers now means we have a legislature to go with our territory, but still have no jurisdiction.
The potential cost of this to Wales can be seen by examining the case of Northern Ireland. Partition there in 1920 led to the immediate setting up of a separate jurisdiction. Today, the courts, probation service, police and prisons in Northern Ireland employ some 16,000 people and a population of 1.8 million has no problem producing, and keeping, the lawyers, judges and associated professions.
Separate jurisdictions also exist in Scotland, Isle of Man, Jersey and Guernsey. To his credit, Carwyn Jones recognised this anomaly some years ago and has referred several times to Northern Ireland as a possible template for development here in Wales. As I am discovering on the inquiry by the Constitution and Legal Affairs Committee, the constitutional arguments are overpowering: the development of Welsh law; a different approach to social justice; divergence in England itself, lead inevitably to a de facto jurisdiction. However, to date, we have not heard enough of the social and economic arguments for such a development.
Though the administrative courts sit in Wales, as does the Court of Appeal, the anecdotal evidence is of many cases starting in Wales and then being transferred to London. Even the issuing of proceedings in certain cases has been centralised to Salford. Unfortunately, such cases are not earmarked and discerning the Welsh legal pound leaving Wales is not easy. London is also a major international law centre, especially as regards commercial law, and will long remain so. Nevertheless, work by centres such as Hywel Dda in Swansea University law school has identified a real potential for growth for legal services here.
The establishment of a distinct Welsh jurisdiction would be an economic driver for Wales. Fairly quickly, new jobs and careers would be possible within Wales. There would be more opportunities for the graduates of our law schools to practice or use their skills in Wales and much legal work would be repatriated. Law jobs are well paid; demand high skills and support a wider knowledge economy in patent protection, IP, contracts, business start-ups and investment, as well as being required for the burgeoning Welsh democracy. They are also a decent money-spinner for our universities as common law practices (which any Welsh jurisdiction would continue to share with England) have an international cachet.
At its simplest a jurisdiction would include institutions such as a Welsh courts system (to Appeal Court level); a process of law reform (perhaps a Commission as in N.I.) and a legal profession (which would be interoperable with other jurisdictions).
Welsh government has already expressed an interest in the devolution of youth criminal justice; many Chief Constables support the devolution of policing (how much better would be a single Welsh force rather than the elected commissioners system foisted on us by Westminster), and a different policy approach to social justice demands control over the probation and prison services in time. Whether these developments happen at once, or as a process, they will all bring significant economic benefits to Wales. Legal services are currently thought to make a contribution to GDP similar to 50% of agriculture.
I believe the constitutional argument for a separate Welsh jurisdiction is irresistible. I agree with the former Attorney General John Morris however when he said that the sums need to be done. I am convinced the economic case will far outweigh any initial establishment costs and I hope this will now be part of the government’s ongoing work on a jurisdiction.
Simon Thomas AM, Assembly Member for Mid and West
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