This final part of the first mini-series on a Welsh legal system looks at law-making and the possible relationship between the Welsh Government, Senedd and the judiciary after independence. Contain your excitement.
The next mini-series – focused on policing – will be published sometime in late September/early October.
At the moment, the senior legal adviser to the Welsh Government is the Counsel General – a post created in 2006.
It’s the only Cabinet-level appointment in Wales that doesn’t necessarily have to go to a Member of the Senedd, though only one previous Counsel General – Theodore Huckle QC (2011-2016) – was appointed from outside the Senedd.
At present, the Counsel General in Wales performs a similar role to the UK Attorney General (whose jurisdiction is largely restricted to England and Wales – Part I):
- Provide legal advice to Welsh Government ministers.
- Represent the Welsh Government in legal proceedings and/or oversee how the Welsh Government is represented in court. This has happened a few times when Welsh laws have been challenged in the UK Supreme Court. The Senedd has its own legal service, maintaining some separation between the executive and the legislature (more on this later).
- Act as a liaison between the Welsh Government, the UK Government, the judiciary, the legal profession and Law Commission (Part II) on matters of Welsh law and administration of justice in Wales.
- Oversee the legislative process – assisted by a Legislative Counsel (who actually drafts new laws) – including the power to refer Welsh laws to the UK Supreme Court and a general responsibility to improve the accessibility of Welsh law.
- Sets policy in those areas of justice where Wales does have some limited powers (i.e. the Welsh tribunals).
With independence, the (surely re-titled) Welsh Attorney General would take on some extra responsibilities. Based on the UK Attorney General’s Office, this could include:
- Representing Wales in international courts, hearings and tribunals (or overseeing the process).
- Advising the Welsh Government and Senedd on the legal and constitutional implications of international agreements and treaties.
- If Wales opts to have a written constitution, oversee the process of amendments.
- Political accountability for the public prosecutor (Part IX).
- Challenge “unduly lenient” sentences in public interest court cases.
The office would be an extension of the existing Counsel General’s role so there needn’t be any particular difficulties in setting it up – though the additional responsibilities may warrant a slightly larger department.
As it’s technically not a ministerial role but an office in its own right, then the principle that it doesn’t need to go to a Member of the Senedd could continue after independence – though it would have to go to someone with prior experience as either a solicitor or barrister.
