Although hardly anyone bothered to vote, towards the end of 2020 the justice system was selected on Twitter as the next in-depth topic for the Independence Index.
Instead of posting it all in one go, I’ve decided to split it into four “themes” which will be posted gradually between now and spring 2022 (if the independence “movement” still exists by then).
The first theme – a look at the legal system itself – is probably the most boring/technically complicated one, so I decided to get it out of the way first.
This includes legal administration and structure, how laws are made and how the law is balanced with, and complements, the constitution and civil rights.
As usual, I thought I’d kick things off with a look at where we’re at now.
Welsh law first developed similarly to that of the other Celtic peoples. People were broadly separated into various classes based on kinship and social rank, while the law itself was passed down orally with a heavy emphasis on compensation for legal wrongs rather than revenge/retribution.
Welsh law would eventually be drafted in written form as Cyfraith Hywel (Laws of Hywel Dda1) – which could be described as a mix between a written constitution (as it addressed the administration of the Welsh royal court and basic rights) and a straightforward codification of Welsh criminal and civil law (Part IVa).
I mentioned in a previous piece on the constitution that some aspects of Welsh law were progressive for their time (particularly the rights of women and illegitimate children). Nonetheless, there were some less progressive elements relating to slavery/serfdom and naturalisation processes that make Priti Patel seem like a “woke lefty” in comparison.
Welsh law was administered locally at a court based in each cantref (the equivalent of a county or district) which – depending on which part of Wales it was based – could be presided over by either a full-time judge, the local prince or a mix of part-time judges and senior landowners. Judges had to prove they understood the law and there was a right to appeal.
Even though the Norman Marcher lordships encroached into Wales, Welsh law remained dominant until the Statute of Rhuddlan 1284 extended English criminal law to Wales – though Welsh civil law (i.e. contract and property disputes) continued to be used.
Although a form of administrative devolution for Wales was established via the Ludlow-based Council of Wales & The Marches in 1473 (abolished 1689) – which heard many criminal and civil cases – the Laws in Wales Act 1535-1542 ended the last remnants of old Welsh law. At this point, English law and the English legal system was fully applied to Wales.
The Acts completely changed the administration of the law by creating English-style magistrates, abolishing the Marcher lordships and banning the use of the Welsh language in the courts. The Court of Great Sessions was established as the high court in Wales until it was itself abolished in 1830, at which point Wales no longer maintained a distinct court system.
Despite this, several Wales-only laws were passed by the UK Parliament to take into account religious, cultural and political differences in Wales including:
- A ban on Sunday drinking (Sunday Closing Act 1881) due to the influence of the temperance movement; this wasn’t completely repealed until 2003.
- Extending the availability of secondary and technical education (Welsh Intermediate Education Act of 1889) due to a growing middle class in industrial areas.
- The disestablishment of the Church of England (Church in Wales Act 1914) due to the prominence of nonconformist Christian denominations in Wales.
- The gradual repeal of the Laws in Wales Acts and reintroduction of the use of the Welsh language in the courts (Welsh Courts Act 1942, Welsh Language Act 1967) and making Welsh an official language in Wales (Welsh Language Act 1993).
1: University of Wales, ‘Cyfraith Hywel’. Available at: http://cyfraith-hywel.cymru.ac.uk/index.php
