A Welsh Jurisdiction? Time to experiment??

I confess to some ambivalence about the Welsh Government’s announcement that they are pondering greater steps towards a Welsh Jurisdiction. My main intuition is this is something which is good for Welsh lawyers (and so for Welsh law schools), but of more questionable benefit to the individuals and businesses of Wales. Significant democratic benefits aside, if we think in terms of inward investment from firms based in England, for instance, then the costs added by dealing with two sets of laws may well have some inhibiting effect on their willingness to engage.

That said, there are some important opportunities, potentially. Wales could place itself in the position of legal innovator. Such innovation might take place at the level of substantive law (already there are differences in areas such as education, for instance), but also at the level of procedural law and costs. It may even be possible to experiment with one very profound change: a shift from a precedent-based system to a code-based approach. This would be a radical step and one which will runs counter to many of common law instincts, but with the First Minister apparently contemplating ‘consolidation’; perhaps it is not an idea which is completely off the agenda. Common law is often regarded as more certain, and more adaptable, than code- or principle-based systems – but contrary case is both arguable (common law is only certain and adaptable for those with immense legal resources) and supported, albeit only to a modest extent at the moment, by empirical evidence. I have blogged about this previously here. One question would be, where to start the experiment? Which area of law? A Welsh commercial code would, to adopt Sir Humphry’s phrasing, be a very brave decision. Maybe there are better places to consider the experiment. One idea might be to look to areas where there are likely to be more litigants in person: there are, again, plausible arguments that principle-based codes are probably easier for them to apply and give them a stronger sense of fairness than the obscurities of common law. There is already some talk of Welsh family law. One can imagine the controversies over substantive issues; but in purely access to justice terms, it might make sense.

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