Ymhlith y cwestiynau yn y Mesur hwn a fydd yn teimlo yn bell o fywyd pob dydd yw’r cwestiwn o awdurdodaeth. I lawer, bydd yn teimlo fel pryder i gyfreithwyr ac academyddion yn unig, ond mae agweddau ymarferol iddo y dylid mynd i’r afael â nhw yn y Mesur hwn os ydym o ddifri am gryfhau cynseiliau datganoli i ddelio â’r cynnydd yn y pwerau a ddaw i’r Siambr hon.

In the debate over the question of jurisdiction, it isn’t clear to me what the rationale is for maintaining the status quo. I hope it isn’t an instinct to put it in the ‘too difficult’ box, because it isn’t. The issue of maintaining the single jurisdiction for England and Wales runs the risk of being the legal equivalent of the idea of parliamentary supremacy—a sort of constitutional comfort blanket that has been held on to out of fear or inertia and that, frankly, fails to address the increasing complexities of the current democratic arrangements. A distinct legal jurisdiction for Wales is a limited legal change with significant practical advantages.

Just to be clear, I’m not arguing for the complete separation of courts and of judges. This isn’t a question about buildings or about people, or the colour of the robes or the crest above the chamber. In fact, there will be significant advantages for litigants and for the public if the legal personnel, be they judges or practitioners, are the same individuals, operating seamlessly in parallel jurisdictions of Wales and of England. It is not at all unusual in our common law tradition for lawyers to be dual-qualified in this way, so this is not an innovation. But with an expanding body of Wales-only law, coupled with a distinct geography, it would seem common sense, let along legally attractive, for this to be accompanied by a rule that the laws passed by this body affect only devolved Welsh laws and do not affect English law—otherwise known to all intents and purposes as a distinct Welsh jurisdiction. This is a pragmatic change, and it will have a positive effect of helping to avoid some of the border skirmishes, if you like, that are otherwise inevitable in drafting the law and in operating it.

But there is another issue to be considered as well. In the common law tradition to which we in Wales and England belong, judges are bound by precedent when interpreting the law. They are bound to follow the decisions of judges of higher courts in the same jurisdiction. With a single legal jurisdiction, precedent created in an English court on a matter that, in Wales, is devolved could affect a judge adjudicating a case in Wales, by virtue of being part of the same jurisdiction. This is actually more likely to happen with the proposed devolution of aspects of criminal contract and property law. It is very important that we have clear boundaries about what factors judges in Wales look to when deciding cases. This is in the interest of the public. The way to solve this is to recognise, at least with regard to devolved matters, that the law of Wales and the law of England are distinct. Judges deciding cases under Welsh law would not inadvertently affect English law, any more than judges deciding cases under English law would inadvertently bind judges in Wales. As the body of Welsh law expands, this will become more, not less, of an issue. It is not hard to solve. The work done in relation to the Welsh Government’s draft Bill, and the analysis of the recent stakeholder group, chaired by Mick Antoniw, offers a route-map here, and, importantly, this approach has benefits for both England and Wales.

One final point: this Bill seems to me to want to give the impression of a distinct jurisdiction without actually establishing it. The acknowledgement in the opening sections of the Bill, that a body of Welsh law exists, points to that. I believe that we need to take that acknowledgement one step further and introduce in this Bill a distinct Welsh jurisdiction.