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.).
Codification is the process by which all laws are brought together into a single body of law (a codex) covering either laws in their entirety or groups of laws.
Civil law jurisdictions usuall have codified laws, but it’s used in common law and mixed legal systems too – albeit with a greater emphasis on precedent rather than legislation.
In the United States (which uses common law, except Louisiana) most law is codified in either the US code or as state codes. Also, most county/municipal governments have a city code/code of ordinances – governing things like planning, environmental health and licensing – which councillors modify using legislation.
In other common law jurisdictions like England and Wales, the law is usually codified by putting court judgements/precedent into new/separate Acts or by amending existing Acts.
Codification, in principle, makes laws more accessible and easier to understand because it’s brought together in a single place, instead of being spread across multiple documents or restricted to law reports (used in common law jurisdictions to report on new case law and court judgements). Most “legalese” is removed and the law is reduced to its simplest form.
There are drawbacks too which are largely similar to the disadvantages of the civil law system mentioned earlier. These include inflexibility, the length of time involved and differing interpretations.
Types of codification
- Civil Code & Criminal Code – This is most often used in civil law jurisdictions. The entire body of law is brought together into at least two codes – one dealing with property, contracts, family law etc. (civil code) and one dealing with criminal law (penal/criminal code). The most famous example is perhaps the Napoleonic Code, while there are common law civil codes used in the United States as mentioned earlier.
- Novel/Creative Code – This means “starting from scratch” and creating an entirely new body of law without any reference to existing or previous laws. This comes with a lot of leeway but it would be a long-term generational project than something that could be done relatively quickly after independence.
- Consolidation Acts – In common law jurisdictions (particularly England and Wales), Consolidation Acts bring together existing laws in a given area (i.e. environment, planning, housing) into a single law. This is set to happen to Welsh law as part of the Legislation Act 2019. Supporting consolidation is one of the roles of the Law Commission (Part II). The goal is to simplify and modernise the law, but it could be considered a form of codification-by-stealth.
A civil code is “neater” – and we could introduce an American-style local code system in local government after independence to cover regulations and by-laws – but given that we’ve already started on the path to Consolidation Acts we might as well stick with it.
There are – as of posting4 – proposals for up to 17 Consolidation Acts in Welsh law over the coming years (though it appears the Wellbeing of Future Generations Act 2015 will remain stand-alone).
If this remains the preferred option going forward, then UK legislation would need to be formally worked into Welsh law after independence (i.e. regulations around safety at sports grounds – which isn’t devolved – being worked into the proposed Welsh culture, sport and historic environment consolidation act). There would also need to be several more Consolidation Acts – including but not limited to:
- Criminal Justice
- Policing & Criminal Procedure
- Civil Justice
- Civil Procedure
- Family Law (which could include probate and inheritance)
- Contracts
- Property
- Commerce (which could include insolvency, trading standards, consumer rights and copyright etc.)
- Companies
- Charities
- Employment Law (which could include industrial relations/trade union law and health & safety)
- Control of Drugs
- Broadcasting & Media (The Welsh Media X: Regulating the Welsh Media)
- Financial Services (insurance, private pensions, banking/personal finance, financial regulations)
- Defence/Military Justice/Military Code (see more: Defending Wales X – Service & Veterans)
- Emergency Powers
Part of this would be dependent on what would be in a Welsh constitution too (see more at A Welsh Constitution) – a Bill of Rights could partially cover property, privacy or trade union rights for example, while some electoral law could be set in a written constitution.
4: Welsh Government, (October 2019). The future of Welsh law: classification, consolidation, codification. Available at: https://gov.wales/sites/default/files/consultations/2020-01/the-future-of-welsh-law-consultation-document.pdf
