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.).
As England and Wales share a common law system then, in principle, all current UK and English and Welsh laws (and case law) would continue to apply after independence. They wouldn’t be repealed or struck out by independence itself. The same goes for Welsh law made under devolution.
Just to make sure, the easiest thing to do would be for the Senedd to pass a law similar to the EU Withdrawal Act 2018 – for argument’s sake called something along the lines of “Continuity of Effect Act” – to guarantee that all existing laws made under England and Wales would carry over and continue to apply in Wales after independence and become part of Welsh law.
Any subsequent case law or judgements in any other common law jurisdiction (nearly all US States, Australia, England, Republic of Ireland etc.) would be used as discussion points or to form an argument (known in legal terms as “persuasive authority”) but wouldn’t bind the Welsh courts to a particular decision.
A Welsh Legal Jurisdiction
A Welsh legal jurisdiction would be created by default after independence or the devolution of the criminal justice system.
It would be the constitutional principle that there’s a distinct body of Welsh law that applies only in Wales subject to the Welsh courts. It doesn’t need a special procedure as such and wouldn’t come at any cost other than the costs associated with establishing a separate legal system.
The only sticking point here would be the possible creation of a federal or devolved Wales after independence (i.e. dividing Wales into self-governing or devolved territories).
If criminal justice was devolved within Wales – or if the federal subjects had law-making powers – then there may be a need to make a distinction between laws made at the federal level (by the Senedd) and those made by “states” (i.e. North Wales, Gwent). There would probably need to be separate federal and state court systems as well. All of that is a topic for another time.
The Law & The Welsh Language
For this I’m referring to on paper legislation itself, not the court system, the use of Welsh in legal education or the rights of Welsh speakers under custody. I’ll be looking at that in later pieces.
In that context, this issue has largely been settled.
The Legislation Act 2019 expressly puts Welsh and English on an equal footing in terms of law-making. All pieces of legislation – primary and secondary – made since devolution have been published in both languages1.
The only possible point of contention here is where there’s a differing interpretation between English and Welsh terms because they can’t be exactly translated. As far as I know, this hasn’t caused any serious problems to date.
The only example I can think of was during the Control of Horses Act debate. Welsh is known for having “colourful” names for various animals and there was a brief argument over how “bastard mul” (a hinny) affected the interpretation of the proposed law in English.
1: Legislation Act 2019, Part 2, Section 5.
