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.
Following the 1997 devolution referendum “Yes” vote, 20 policy areas were devolved to the newly-created National Assembly (now the Senedd/Welsh Parliament).
Between 1999 and 2006, the Senedd could only make or change secondary legislationa. This meant the UK Parliament continued to make any primary legislationb in devolved policy areas with little input from the Senedd.
The Senedd did, however, use these secondary legislation powers to great effect. Some popular post-devolution policies – such as free bus travel for the over-60s and free prescriptions – were introduced through regulations.
As part of a review of devolution in 2004, the Richard Commission recommended the Senedd should gradually be granted full primary law-making powers in policy areas devolved to Wales, with some continued input from the UK Parliament2.
This recommendation was partially implemented in the Government of Wales Act 20063. Under the Act, the Senedd could make new primary legislation (known as Measures) with some limits.
If the Senedd wanted to make a Measure but the specific powers were not explicitly devolved to Wales in Schedule 5 of the Act, the Senedd needed to apply to the UK Parliament to ask for the necessary powers to be transferred (known as a Legislative Competence Order/LCO). The LCO would need the approval of the Senedd, both houses of the UK Parliament, the Welsh Secretary and the monarch.
LCOs took forever because at the time devolved powers were managed line-by-line. Meanwhile, the process of getting them through the UK Parliament was slow and lacked transparency – though it was considered to be an adequate means of bedding in the Senedd’s new law-making powers4.
The Government of Wales Act 2006 contained a clause (within the original Part 4) in which the Senedd would be given full primary law-making powers in devolved policy areas if those powers were approved in a referendum.
This referendum wasn’t expected to happen “for a generation”, but following the 2007 Senedd election – which unexpectedly led to a Labour-Plaid Cymru coalition government – it was agreed a referendum would be held before the end of the term.
The referendum took place on 3rd March 2011. Despite a low turnout – and concerns over the very technical nature of the question being asked – full law-making powers were approved by 63.5% to 33.5%. As a result, the LCO system was scrapped and the Senedd could make Bills and Acts in policy areas devolved to it in the same way as the Scottish Parliament.
Since the 2011 referendum, the Senedd has passed 44 Acts (as of July 2021).
While the ability of the devolved parliaments to make laws in devolved areas is supposed to be as close to unrestricted as possible, under the principle of parliamentary sovereignty the UK Parliament can make or unmake any law it chooses – including in devolved areas (addressed in the two links below).
However, when the UK Parliament intends to make a law in a devolved area, they usually have to ask permission (known as the Sewel Convention) – though they can still proceed regardless of whether they’ve been given permission or not due to parliamentary sovereignty.
a: Primary legislation – Laws drafted and passed by a parliament/legislature as a Bill or Act.
b: Secondary legislation – Laws made as the result of primary legislation, such as regulations, orders, codes of practice and directives. They usually deal with how laws are applied in practice and are drafted by ministers and civil servants rather than parliaments/legislatures.
2: Richard Commission (2004), Report of the Richard Commission (2004) p255-250. Available at: https://webarchive.nationalarchives.gov.uk/20100404200945/http:/www.richardcommission.gov.uk/content/finalreport/report-e.pdf p255-258
3: Part 3, Government of Wales Act 2006
4: UK Parliament, Welsh Affairs Select Committee (January 2010), Review of the LCO System. Available at: https://publications.parliament.uk/pa/cm200910/cmselect/cmwelaf/155/15503.htm
