Theodore Huckle and “our aspiration for the devolution of justice”

I always listen very carefully to what the Counsel General, Theodore Huckle, has to say. He is by all accounts very close to Carwyn Jones, is at the heart of internal Welsh Government discussions about the evolving Welsh constitutional settlement, and as a law officer, has a refreshingly direct and ‘unspun’ approach to the constitutional issues of the day. He never says anything that goes beyond his brief or the scope of his office, but neither does he evade questions or seek to artificially limit the information he provides to Assembly Members or the public on matters that are within his remit.

Mr Huckle gave a speech to the Law Society Wales Summer Reception last Wednesday. The majority of the speech focused on how the rule of law should be enhanced by ensuring better access to it, and in particular, the duty that ambition places on Welsh lawmakers for clarity, certainty and wide availability of legislation. His stated support for consolidation statutes, codification in general and initiatives such as the one-stop legal commentary ‘Cyfraith Cymru Law Wales’, are to be welcomed by those of us who believe that a separate Welsh legal jurisdiction and justice system are not only inevitable in the medium term but highly desirable in the short. But this support is not new, and he has spoken about it many times in the past.

One paragraph of his speech does, however, hint at a change of rhetorical positioning of the Welsh Government vis-à-vis the devolution of Justice. Early in his speech he states:

“Responsibility for the justice system, including legal aid, currently sits with the UK Government and legislature. The Silk Commission recommended the devolution of justice matters, and we wait to see what will come of that. But whilst I agree fully with Lord Neuberger’s observation in his 2013 Tom Sargent Memorial Lecture that “without justice there is no rule of law” that does not mean we do not have responsibilities towards the rule of law even outwith our aspiration for the devolution of justice.”

This short passage suggests two very important elements of current thinking in the Welsh Government. Firstly, that they have not ruled out that Whitehall may still react positively to Silk II and the devolution of policing and the justice system (“we wait to see what will come of that”), and secondly, that the Welsh Government has now adopted a more a publically assertive position in support of judicial devolution (“our aspiration for the devolution of justice” – my italics).

Theodore Huckle does not speak out of turn, and whilst personal opinion on policy might be expected in a speech by an elected politician like Carwyn Jones, it is much less common in the discourse of a legal officer such as the Counsel General. Is it fair to speculate, therefore, that the Welsh Government now has an official policy of supporting the devolution of justice and that they are pressing that case with Whitehall as part of the new Wales Bill process? Has that support been elevated from the status of a personal opinion of the First Minister to that of Government policy which the Counsel General is now free to discuss on the floor of the Assembly? It’s a question our AMs might wish to pursue at the next CG Questions…

The whole speech is available from the Welsh Government website here in English and here in Welsh.