The final two articles in this mini-series cover probably the most constitutionally important elements.
I start with a look at the legal system as a whole. This includes the type of legal jurisdiction (with pros and cons), what would happen to existing laws (domestic and international) and a look a the pros and cons of codifying Welsh law.
Part IV(b) looks at how the law could be administered politically after independence (Attorney General, role of the Senedd etc.).
For the sake of this exercise, “legal system” means the system by which the law is applied in practice. This includes the source of law, court procedure and the impact of judgements on policy-making.
There are several different ways to do this, but the most commonly used systems are common law, civil law and various degrees of mixed legal systems (which include elements of common, civil and other forms of law like religious laws).
In countries with a written constitution, that constitution is usually the highest source of law alongside legislation and/or legal codes (see also: A Welsh Constitution series).
At present, England and Wales use the common law system.
Advantages and Disadvantages
As mentioned, this is what we have now. As we’re not used to any other way of doing things – and the entire mechanism of the criminal justice and legal education system is geared towards common law – maintaining a common law system after independence is something of a no-brainer.
The biggest advantage, constitutionally, is that the judiciary (Part XI) has (on paper) more independence and they have a role in making policy and interpreting the law.
Some of the drawbacks include entrenching positions in the judiciary amongst those who’ve gone through all the hoops to become a judge – including the very expensive process of becoming a solicitor or barrister. Without reform, it would remain a largely upper-middle-class profession with all the associated impacts on diversity in the legal professions and judiciary.
Switching to a civil law system may go some way towards addressing (but not eliminating) inequalities issues in criminal justice. Focusing on the facts of the case and simplifying the law to a code reduces the need for extensive cross-examination – which may be used to undermine the credibility of witnesses (to influence a jury) rather than the credibility of the available evidence.
The single biggest advantage – a completely clean slate – is also one of the biggest disadvantages. Civil law systems are almost completely alien to us (unless you’ve been in trouble on holiday). It would be like ripping up everything every practising solicitor and barrister has ever learned.
It would be a long, slow process to switch legal systems – developing new penal and civil codes, changing how the courts work, re-educating practising lawyers and changing law syllabuses.
This would almost certainly mean all legal work relating to Wales would have to be undertaken by Welsh lawyers in Welsh courts – but is that moderate economic boost worth it? And you don’t necessarily have to have a civil law jurisdiction to codify the law (more later).
Mixed Legal Systems
Mixed legal systems have – as you might expect – a mix of the advantages of the two systems above, depending on precisely how the two systems are mixed. Therefore, it’s impossible to say what the advantages or disadvantages of a mixed legal system are. The obvious benchmark to compare to is Scots law.
Scottish property and family law are noticeably different from England and Wales, with property law being far closer to a mainland European civil law system than common law.
Commercial law and most criminal law, however, is similar to the rest of the UK – though there are some differences in procedure. This includes the infamous not proven/”bastard verdict” (“We know you did it, but we can’t prove it you bastard”) in Scots law and some differences in the titles of the court officers and legal professionals (Part II, Part X).
If a wholly common law system is no longer believed to be suitable for Wales’ needs, then a mixed system might be the best alternative – particularly changes to court procedure (perhaps moving to a more inquisitorial system in magistrates’, civil, family and youth courts) and codifying the law where possible (more on this later).
