The view from Wales

As Wales welcomes its first Supreme Court Justice, David Hughes bemoans linguistic infelicities and says a separate jurisdiction is overdue

October saw a legal first – a Welsh one, albeit one that took place in England. Lord Lloyd-Jones (pictured) joined the UK Supreme Court, and took his oaths both in English and Welsh. Wales can no longer claim the Lord Chief Justice as one of our own, but we do have our first Supreme Court Justice; with perhaps a more recognisably Welsh accent.

What should we expect of Lord Lloyd-Jones (pictured)? There’s no doubt he will do his best to decide the issues that come before him fairly, and no-one who’s met him would doubt he will treat all parties (and their advocates) with courtesy. Do we have a right to expect any more than this from a judge? Possibly not, but there is one thing that many of us would like to see: although the Supreme Court’s badge includes representation of Wales together with England, Scotland and Northern Ireland, too often one reads references to ‘English’ law and ‘English’ courts. Of course there are instances in which the law in England is different to that in Wales. But people who ought to know better – be they the higher judiciary, respectable solicitors firms, even people interviewed or advertising in Counsel – too often use ‘English’ not to distinguish from Welsh, but as a shorthand encompassing it.

Seeing Lord Lloyd-Jones take his oath in Welsh might have made English-based readers wonder about the language. Firstly, it should be understood that, whilst the language is an important part of Welsh distinctiveness, it is not the whole of it. Although I, like most of my compatriots, am not a Welsh speaker, I like to think that we’re getting language politics about right in Wales. Litigants can and do use Welsh in court, cases can be argued in Welsh, and will be listed before Welsh-speaking judges. It is to the credit of all concerned that the requirement for Welsh-speaking judges is met without English speakers feeling that the Bench isn’t open to them (us).

All that said, respect for the Welsh language could still be improved. For example, QC Appointments will only accept assessments in English, with interviews expected to be held only in London and Manchester. This may, of course, merely reflect a lack of Welsh applications, perhaps compounded by perception that the application system operates unfairly to Wales’ interests.

Commission on Justice in Wales

Lord Thomas retired as Lord Chief Justice on the same day that Lord Lloyd-Jones joined the Supreme Court – but his retirement looks like being an active one. It has recently been announced that he is to chair a Commission on Justice in Wales. As I write this, it is not known what the commission’s membership or terms of reference will be, but some interesting thoughts were shared by Lord Thomas in a lecture given in Cardiff on 27 October. Although rightly keen to emphasise that he was sharing personal thoughts and not pre-judging the commission’s work, Lord Thomas made the point that the needs of a justice system addressing England and Wales will inevitably have to address the needs of the major English conurbations. A joint system can take account of Wales, but cannot be focused on Wales.

There is a well-known phrase in Wales, that devolution is a process, not an event. This risks becoming something passed down through the generations. The 2017 Wales Act was the subject of significant criticism – including by myself. For all that each step along the devolution journey is spun by the UK government as involving some degree of permanence, the truth is that anything short of parity with Scotland or Northern Ireland will inevitably feel temporary. It is widely recognised that the desire in London to preserve the single Anglo-Welsh jurisdiction – despite the important differences in substantive law, some of which I refer to below – is a major obstacle to such parity. For that reason, anything short of an orderly move to a separate jurisdiction is likely to leave unfinished business.

On the subject of substantive differences between English and Welsh law (or, as the parliamentary draftspersons might prefer, ‘Anglo-Welsh law as it extends only to Wales’), real differences exist and continue to grow. For example, in housing law (see the Housing (Wales) Act 2014) the law is significantly different to that in England, differences that are increased by the Renting Homes (Wales) Act 2016, most of which is expected to come into force next year. Stamp duty will be replaced in April 2018 with the land transaction tax, which will be collected by the Welsh Revenue Authority rather than HMRC. Legislation pending before the Assembly includes Bills that would abolish the right to buy – housing is a field in which the Assembly is active – and to introduce minimum unit prices for alcohol.

No brain drain – cross-border

The obvious answer would be for Wales to have its own legal system. I was one of the authors of a pamphlet calling for this. Discussion of this subject is often ill-informed – Lawyers for Britain (another linguistic infelicity) in a recent tweet appeared to suggest that English law was adopted in Wales as a result of some conscious choice by us. I will not repeat the contents of our pamphlet here – google ‘Justice for Wales Pamphlet’ – but some points can quickly be made. A separate jurisdiction would not be about creating artificial barriers; many of us have cross-border practices we would want to maintain. But the oft-repeated allegation that it would lead to a ‘brain drain’ of talent to London is not only insulting to those of us who prefer to base ourselves in Wales, but is in some tension with experience. Consider Lord Thomas and Lord Lloyd-Jones. Both Welshmen, yet each made their career practising in English chambers. Lord Kerr practised in the Bar Library in Belfast, Lords Reed and Hodge at the Scottish Bar. So much for a brain drain. 

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David Hughes

David is a barrister at 30 Park Place Chambers in Cardiff. He has a broad common law, commercial and public law practice.