Instead of reflecting on a brilliant performance of Swan Lake at the Lowry by the Birmingham Royal Ballet, I spent much of Thursday evening reading Justice for Wales. That is the title of a pamphlet written by Sir Roderick Evans QC and others calling for the establishment of a separate judiciary and court system for Wales. My copy came from my good friend and colleague David Hughes who is a member of my chambers' intellectual property team. I googled "Sir Roderick Evans QC" and "Justice for Wales" but was unable to find the publication on the worldwide web. The nearest I came was Top lawyers campaign for a separate justice system for Wales 23 Sept 2015 Wales on Line.
The pamphlet makes a good case for the reform of the English and Welsh justice system generally. For instance:
"In its report entitled ‘Doing Business 2015’, the World Bank ranked the UK only 36th in the world for ‘Enforcing Contracts – how judicial efficiency supports freedom of contract’. According to the World Bank, enforcing a low-to-mid value contractual claim in the UK typically costs 39.9% of the value of the claim. This compares unfavourably with Germany (14.4%), France (17.4%), Australia (21.8%) and the United States (30.5%)."I have made similar points in relation to the cost of patent litigation (see Jane Lambert Why IP Yorkshire 10 Sep 2008 IP Yorkshire) although the situation has improved with the reform of the Patents County Court in 2010 (see Jane Lambert New Patents County Court Rules 31 Oct 2010 NIPC Law) and the launch of the small claims track in 2012 (see Jane Lambert Patents County Court - the New Small Claims Track Rules 20 Sept 2012 NIPC Law).
However the main point of the pamphleteers seems to be that
"the shared court system of England and Wales means that cases involving issues solely relating to Wales are routinely decided by courts in England and by judges with little or no connection to, or experience of, Wales or the law created by the National Assembly."I am not persuaded that that actually happens very much in practice because litigants in Wales will wish to bring their cases in the nearest District Registry or County Court hearing centre but, even if it does, I am even less convinced that litigants in Wales would regard it to be a bad thing, Surely they want the best judicial talent for the resolution of their disputes regardless of the judge's residence or provenance and they are much more likely to find the best in a wide pool than a narrow one.
One lacuna in that pamphlet despite David's contribution is the absence of any reference to intellectual property. That is surprising as the Intellectual Property Office has been based in Newport since 1991. It employs over 1,000 people in that city and contributes considerably to the local economy and community in all sorts of other ways. Were the administration of justice to be devolved to the Welsh government there would be be pressure upon the United Kingdom government to return the IPO to London or at least to the other side of the Severn.
The reason for that pressure is that the needs of multinational companies would not be a priority in a separate Welsh justice system. The pamphlet makes that very clear:
"The existing jurisdiction of England & Wales may be the jurisdiction of choice for many litigants who otherwise have little territorial connection to the UK. The primary beneficiaries of that popularity, however, are London’s major commercial law firms. Indeed, the focus of the jurisdiction is increasingly fixed on London’s status as a centre for international litigation, at the expense of serving the needs of – and encouraging the growth of – homegrown businesses. By controlling our own justice system in Wales, we could make sure that the needs of international litigation did not take priority over the everyday business of the courts."Yet it is multinational companies such as IBM, Dyson Technology and Broadcom Corporation that were the top three patentees in the UK in 2014 (see page 12 of IPO Facts and Figures 2013 and 2014 Calendar Years).
The Comptroller-General of Parents, Designs and Trade Marks exercises judicial as well as administrative functions which he delegates to a panel of hearing officers. At present appeals from their decisions lie to the Patents Court in patent and registered design matters and to the Chancery Division in trade mark matters. Were the IPO to remain in Newport after the establishment of a separate Welsh legal system the hearing officers would be Welsh tribunals subject to Welsh administrative law. It is unlikely that litigants in other parts of the UK and indeed the rest of the world would be content for their appeals to be determined in Cardiff where David is one of a very small number of lawyers known for their expertise in intellectual property law instead of London where the bulk of the patent bar is located and the needs of multinational companies are met.
I have discussed the position of the Intellectual Property Office at some length because IP is my manor but there well may be other ministries and executive agencies with offices in Wales where the same concerns apply. The IPO, for example, shares an attractive woodland site on the city's outskirts with the ONS. A separate Welsh justice system may well make work for Welsh lawyers but it should not be at the expense of loyal and hard working Welsh civil servants or the businesses that supply them.
There are other concerns. At present Welsh intellectual property owners can bring their claims in the Intellectual Property Enterprise Court with its specialist judge and limits to the length of trials and recoverable costs. There is also a small claims track in IPEC with a simplified procedure and minimal court fees and recoverable costs. There is nothing like IPEC in Scotland or Northern Ireland. In those jurisdictions even relatively small claims have to be brought in the Court of Session or the High Court of Northern Ireland at enormous cost (see Jane Lambert Patent Litigation in Northern Ireland: Siemens AG v Seagate Technology 13 Aug 2011 NIPC Law). Would the Welsh government establish an IPEC for Wales when the Scottish and Northern Irish governments have failed to do so for their IP owners? It is possible but unlikely for who would be appointed to the bench and who other than David could appear before it?
It may be sensible to establish a Welsh justice system were we to adopt full blown federalism for the United Kingdom as in most of the jurisdictions mentioned in the "Can we do it?" section of the polemic, but unless and until we do become a federal state we should be very wary of disturbing an arrangement that has subsisted since 1535.
One of the objectives of Justice for Wales is to provoke debate on whether a separate Welsh jurisdiction should be re-established. I am therefore pleased that Jane has joined the debate.
Jane says that the lack of any mention of Intellectual Property is a lacuna in our pamphlet. Indeed it is. Whether it is a lacuna that can sensibly be criticised is something on which she and I will have to differ. The pamphlet doesn't mention public procurement law, personal injury law, family law (other than a use of the word "family" in a section dealing with access to justice). It doesn't deal with housing law, healthcare law or planning law (other than mentioning their existence), even though they are devolved areas. The reason it does not is fairly simple. Justice for Wales is a document dealing with the justice system as a whole. That can only be understood as part of Wales' place within the United Kingdom's constitutional arrangements. As a Unionist (it probably doesn't take much googling to find out that I was one of the authors of the Society of Conservative Lawyers' paper "Our Quasi-Federal Kingdom"), a Conservative activist and a lawyer practising IP law (amongst other areas), I am aware of the importance of Intellectual Property to the prosperity of the UK and Wales. But the IP tail cannot be allowed to wag the constitutional dog. It cannot sensibly be argued that we ought to retain constitutionally flawed arrangements for the sake of IP. And such an argument assumes that a separate Welsh jurisdiction would necessarily be worse than the current joint one.
I doubt that Jane makes that assumption, as she accepts our critique of some of the shortcomings of the current joint Anglo-Welsh jurisdiction. What she does not accept, however, is (a) that the problem we pose of judges with little or no connection to or experience of Wales deciding Welsh cases in fact arises often or, (b) if it does, that it is objectionable.
The fact that cases arising in Wales can be heard by courts sitting in England, the fact that lawyers (whether they happen to have been born in Wales or not is not the point) who have chosen to base their professional and personal lives outside Wales are appointed to sit in this country, shows that it can happen as a matter of course. The judgment of the Supreme Court in the Recovery of Medical Costs for Asbestos DIseases (Wales) Bill  UKSC 3 is a recent example of a highly regrettable approach to construing the Assembly's legislative competence - I critiqued it at a Public Law Project event earlier this year.
The English people - if their press and politicians are anything to go by - seem to have a certain resentment of judges in Strasbourg and Luxembourg making decisions that bind the UK. I don't say that Jane shares their attitude, but let us just accept for the moment that there is a significant body of political opinion that thinks it is a problem. Why? Well, is it not because countries tend to want their judges to be from their country? Apart from small countries in which population numbers cause problems (as someone who used to practice full-time in Gibraltar, and is still a consultant to a Gibraltar law firm, I know one such place well), most countries want their cases to be decided by people who understand the milieu from which they arise. The New South Wales judiciary is well-regarded, but would the people of England be happy if their disputes were regularly decided by judges flown in from Sydney? We don't need to go so far. Ireland is a common-law jurisdiction. Jane and I share chambers with some Irish silks, and excellent lawyers they are too. Would the people of Coventry like their cases decided by judges from Cork? I think the answer is obvious, and it involves no slur on the judiciary of Ireland to acknowledge it.
Jane says that "...Surely they (litigants in Wales) want the best judicial talent for the resolution of their disputes regardless of the judge's residence or provenance and they are much more likely to find the best in a wide pool than a narrow one".
Of course they want the best talent. But what does she mean by "best". Judging is not simply a matter the ability to process facts or memorise law - it involves judgment. Even if it were, an understanding of facts and of the witnesses who relate them to the court is best achieved with knowledge of the milieu from which those facts arise. This is related to the above point - the fact that a (wo)man might be an excellent Irish judge does not make him or her the "best" person to decide an English or Welsh case.
As for the size of the pool, plenty of countries or territories manage to run perfectly good judicial systems with lower populations than that of Wales. Those places include about 20 American states and Australian jurisdictions such as Western Australia, Tasmania or Northern Territory. The current Chief Justice of Australia practised in Western Australia before ascending to the bench, which suggests that Western Australia manages to produce acceptable judges.
Jane says that "Were the administration of justice to be devolved to the Welsh government there would be be pressure upon the United Kingdom government to return the IPO to London or at least to the other side of the Severn. The reason for that pressure is that the needs of multinational companies would not be a priority in a separate Welsh justice system....". She goes on to support that assertion with a quotation from the pamphlet that does not, in fact support it. But let us examine her assertion anyway.
Would there be pressure on the UK govt to take the IPO to "London, or at least the other side of the Severn"? Possibly. But there is no reason to think that the needs of multinational companies would not be important to a devolved Welsh jurisdiction. They would be - or at least I would be arguing that they should be, and I would expect those who joined me in signing the pamphlet to agree. What they ought not to be is subsidised by Welsh SMEs (or indeed English SMEs). The pamphlet criticises the increases in, and the structure of, court fees in our joint jurisdiction. Is it really right that the issue fee for a case worth £200,000 should be 5% of the case value, but only 0.3% for a case worth £3,000,000?
Let's look at another of Jane's arguments: "The Comptroller-General of Parents, Designs and Trade Marks exercises judicial as well as administrative functions which he delegates to a panel of hearing officers. At present appeals from their decisions lie to the Patents Court in patent and registered design matters and to the Chancery Division in trade mark matters. Were the IPO to remain in Newport after the establishment of a separate Welsh legal system the hearing officers would be Welsh tribunals subject to Welsh administrative law. It is unlikely that litigants in other parts of the UK and indeed the rest of the world would be content for their appeals to be determined in Cardiff where David is one of a very small number of lawyers known for their expertise in intellectual property law instead of London where the bulk of the patent bar is located and the needs of multinational companies are met."
This amounts to little more than a contention that "London knows best".
Jane and I share chambers in London. A number of other signatories of the pamphlet also have chambers in London. My colleagues there are excellent lawyers. But so are my colleagues in my Cardiff chambers (and my Gibraltar colleagues whilst we're at it). It would obviously be in the interests of Wales to retain the IPO and therefore to retain court procedures to allow IP disputes to be resolved cost-efficiently (we would not need to introduce anything, because we would start with what was in place the day before separation, to address another of Jane's points). Although a formal separation of the professions would be necessary (as ultimately we would be under the authority of different courts) and desirable (we could regulate our legal professions much less expensively than the joint jurisdiction does), no-one wants needless barriers in the way of cross-border practice. Of the four individuals who did the bulk of the drafting work on the pamphlet, 3 of us also have London chambers and would want to continue our cross-border practices. The likelihood is that one would simply have to take out a Welsh (or English) supplementary practising certificate.
Jane closes by saying "...unless and until we do become a federal state we should be very wary of disturbing an arrangement that has subsisted since 1535". But the point is that the arrangement hasn't subsisted since 1535. Wales had its own courts up until the 1830s. And the days when the law, or primary legislation at least, was the same in England & Wales have gone. The arrangements have changed. It is time that the justice arrangements caught up with them.”