Saturday, 20 February 2021

"A Separate Welsh Legal Jurisdiction"

King Hywel the Good, the Codifier of Welsh Law








 













On 17 Feb 2021, I attended a webinar organized by Rights, Liberty and Justice (the Liberal Democrat Lawyers Associaton) on the topic of "A Separate Welsh Legal Jurisdiction".  The speaker was Mr Elfyn Llwyd who had been MP for Dwyfor Meirionnydd until 2015 and leader of Plaid Cymru in the House of Commons. He was chair of the Independence Commission which published Towards an Independent Wales in September 2020.

Almost the first recommendation of the report is a separate court system for Wales on the lines of the arrangements in Scotland and Northern Ireland:
"Wales must have a separate Welsh jurisdiction. Independence is not a prerequisite for this, but the general reservation to Westminster of powers relating to the single England and Wales jurisdiction needs to be removed. The recommendations of the Commission on Justice for Wales should be implemented by a Plaid Cymru Government."

The recommendation to which the Independence Commission refers is the report Justice in Wales for the People in Wales which was published in October 2019.

Before I discuss those reports I should declare an interest.  I am a barrister of the Bar of England and Wales specializing in intellectual property and technology law. I market my services to businesses throughout the United Kingdom and beyond including. in particular, startups and small and medium enterprises in Northwest Wales.  I, therefore, have an interest in ensuring that businesses in that region can access first-rate professional and financial services in any constitutional settlement.  Broader questions such as whether Wales should remain in a union with England, Scotland and Northern Ireland or secede from it are matters for Wales's residents and no one else.  As I do not live in Wales I shall abstain from that part of the debate.

The principal argument of both the Commission for Justice in Wales and the Independence Commission is that the Senedd (the Welsh devolved legislature) enacts primary legislation for Wales.  Gradually but surely the laws in Wales are diverging from the laws in England.  If they are to be enforced justly they must be construed by a judiciary that understands the context in which they were made and the legislative intent.  It may be possible for judges who live outside a jurisdiction to apply its local legislation as the Privy Council has done for centuries, but it is not convenient.  That is one of the reasons is why more and more Commonwealth countries have abolished the right of appeal to London.  As the divergence continues it is certainly in the interests of Wales and probably also in the interests of England for a separate system of courts to be established in Wales. Both unionists and nationalists can agree on that point.

Should that happen the courts of Wales will have to hear intellectual property cases.  Most of the intellectual property cases falling within para 16.1 of the Part 63 Practice Direction can be issued out of and proceed in Caernarfon, Cardiff and Mold pursuant to CPR 63.13 and para 16.2 of the Part 63 Practice Direction.  Those involving patents, registered designs, plant varieties and chip topographies must be issued out of the Patents Court or the Intellectual Property Enterprise Court ("IPEC") in London by reason of CPR 63.2.  Caernarfon and Mold do not have jurisdiction to hear trade mark cases because of para 16.3.  A software developer in Anglesey or Gwynedd that needs to restrain an infringement of copyright in its source code could seek an injunction in Caernarfon or Mold but a fashion designer from those regions would have to travel to Cardiff, Liverpool or London to obtain an injunction to restrain the infringement of her trade mark.  If the designer's registered design were infringed, she would have to go to London.

The journey across the Cambrian mountains is a delightful one as I discovered just before lockdown when my clerk booked me into a conference with a solicitor in Colwyn Bay and a hearing in the Trade Marks Registry the next day "on the basis that they are both in Wales and they don't look so far apart on the map."  The problem is that there is no motorway or dual carriageway between Gogledd and De with the consequence that a journey between the northern and southern coasts of the Welsh peninsula takes all day.  Train services are no better.   According to Trainiine, it takes 4 hours and 16 minutes to make that journey not to mention a 20-minute taxi ride to the Intellectual Property Office which is on the outskirts of the town. A rail journey from Bangor to Cardiff where the Business and Property Courts are located would take more than 5 hours.  By contrast, the trip to Liverpool takes 2 hours and London 3 hours 20.

I pointed that out to Mt Llwyd in the Q & A and he agreed with me.  Resources in Wales are lopsided with specialist courts, law firms and patent and trade mark agencies concentrated in Cardiff and Newport but not much else in the rest of the country.   At present, businesses in the North and Centre can travel conveniently to England for specialist services.  A trip to Cardiff would be far more time-consuming and expensive. The solution, I suggested, would be to upgrade Caernarfon into a Business and Property Court and establish new Business and Property Courts in Aberystwyth and the Southwest.

A commercial jurisdiction can be a stimulus to the economic development of a region as The Commission for Justice in Wales acknowledged at page 371 of their report.  Many years ago the government of the day had the bright idea of abolishing the chancery jurisdiction of the North of England.  Peter Keenan of Bridge Street Chambers in Manchester mobilized the legal and business communities in the North of England to oppose the idea.  Submissions were made to Sir Tom Legg to which I contributed the economic argument. I contended that a commercial jurisdiction in Manchester, Liverpool and Leeds would attract all sorts of professionals and not just lawyers to those cities. They could provide all sorts of financial, cultural and other services to businesses. Sir Tom listened and arranged for a High Court Judge to sit permanently in the North for at least half a term as an experiment.  The experiment was successful and similar arrangements were made for Birmingham, Bristol and Cardiff. In many ways, it was the foundation of the Northern Powerhouse and the Midlands Engine.

Exactly the same arguments can be made for the regions of Wales.   If that country is to develop in a balanced way with important business and cultural centres in each region a separate Welsh jurisdiction has to be accessible from every corner of the land.  Any legislation that the Senedd or the UK Parliament enacts must provide for properly resourced Business and Property Courts with full intellectual property jurisdiction in the North, Centre and Southwest of Wales as well as the Southeast.

Anyone wishing to discuss this article may call me on 020 7404 5252 or send me a message through my contact form.

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