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.
The main role of the Senedd in criminal justice – whether it’s devolved in the future or after independence – would be to propose, amend and pass new laws.
This doesn’t mean the Senedd can do anything they want and there would be checks and balances in place – whether through a written constitution or constitutional conventions/traditions which we inherit from the former UK.
There are several boundaries and principles that the Welsh Government, Senedd and judiciary would need to work within:
- Laws shouldn’t apply retrospectively (ex posto facto) – The Senedd and Welsh Government shouldn’t make laws that criminalise past actions which were previously legal (and could result in a charge). As the common law system (Part IVa) is based largely on precedent this doesn’t usually happen anyway while such laws are banned in the European Convention of Human Rights. Ex posto facto laws are usually only allowed if they make the pre-existing law milder (or result in a pardon) because the original law is deemed to be excessive (for example, the UK amnesty – aka. Alan Turing law – for men criminalised when consensual homosexual relationships were illegal).
- Judges should be responsible for criminal sentencing and awarding damages – While the Senedd would have the power to set mandatory minimum and maximum prison terms (and fines, for example) it’s for the judiciary, not politicians, to decide what sentences or remedies apply to each individual case – usually through sentencing guidelines or tariffs developed independently (or with limited involvement) of the government and legislature.
- Judges should be free to exercise their powers without interference from the state (or anyone else) – While the judiciary isn’t above the law, it’s a fundamental principle that they (and juries, where applicable) should not be swayed or pressured by governments, parliaments, the police, the media or anyone else to carry out a certain action (or not to). While there’s a right for everyone else to disagree with or challenge their decisions, there are proper legal avenues to do that (such as appeal courts). This is why it’s a general rule that politicians aren’t allowed to discuss ongoing legal proceedings (sub judice) in the Senedd or any other parliament.
- The proportionality principle – New criminal punishments should be proportional to how serious the crime is. It wouldn’t be proportionate, for example, for a post-independence Senedd to sentence fly-tippers to life imprisonment or reduce murder to on-the-spot fines. Criminal sentences are usually decided based on harm to victims or society and blame/culpability of the accused while taking into account any facts that may justify a more lenient response (i.e. pleading guilty, showing remorse, the crime being “out of character”).
- Unjust or unconstitutional laws and government decisions can be challenged – All laws and public decisions should be open to judicial review. If Wales opts for a written constitution, then how new laws fit with the constitution could also be open for review. Cases such as these usually take place in the highest courts – High Court, Court of Appeal and Supreme Court.
Naturally, the Senedd would need to be equipped to scrutinise the justice system. The creation of a Justice & Home Affairs Committee to shadow the relative department(s) would be a given.
The Senedd could play a role in judicial appointments – possibly by holding confirmation hearings for prospective senior judges. The shortlisting and selection of qualified individuals for such posts would likely be done independently (Part XI).
