Growing apart?

The Rise of Welsh Law

The process of devolution, which is now over 26 years old, gave Wales the power to make its own laws in specific, devolved areas. Over time, this has led to what Counsel General Julie James calls a “substantial body of law that applies only in Wales” - with significant differences emerging in areas that affect people’s daily lives.

Social Care is a prime example of this divergence. England operates under the Care Act 2014, while Wales has its own Social Services and Well-being (Wales) Act 2014. As Dr Huw Evans – a non-practicing solicitor and academic who has made the case for separation through his academic research - points out, this creates practical differences. In England, assessing a child for care falls under the Children Act, but in Wales, assessments for both children and adults are handled under the single Welsh Act.

The educational legal framework also differs. Steven Murphy, Head of Legal at Carmarthenshire Council, gives the practical example of school closures, where there is a “much more onerous system in Wales”, designed to protect smaller schools. Meanwhile, Additional Learning Provision in Wales is governed by Welsh legislation, whilst it is under SEN provisions in England, under the Education Act.

Distinct Welsh laws also exist in other key devolved areas, including the environment, transport, housing, planning and local government.

For some, working with different legislation across the border is familiar and largely unproblematic. Sara Tomazewski, Partner at Hugh James, who works across the England / Wales border in social care and education law, says: “I would say the principles are very much the same. Whilst not quite a mirror, they substantively achieve the same thing. For example, when children are placed in care voluntarily, in England that would fall under Section 20 of the Children Act 1989. But from 2014 in Wales, that would be achieved under Section 76 of the Social Services and Wellbeing (Wales) Act 2014. Practically, however, they achieve the same thing.”

For others, however, the complexity of the current landscape is a concern. “I don't think there is any other situation in the world where you have a legislature without the jurisdiction which cradles it,” says Plaid Cymru MP, Liz Saville Roberts.

With legal divergence set to increase with Senedd reform over the coming years, varying ways to proceed have been considered by politicians, legal professionals and academics.

The case for a separate system

Some argue that establishing a separate legal jurisdiction is the logical and necessary next step for a devolved nation.

Dr Huw Evans, academic lawyer and commentator, highlights the need for “clarity of arrangements”.

From his perspective, a separate system would make it immediately obvious which laws apply in Wales – reducing confusion for citizens, business and legal practitioners. Meanwhile, he argues this clarity would make it easier for people to understand their rights, thereby improving access to justice, which he links to the fundamental principle of the “rule of law”.

He notes: “There is a need for Welsh lawyers to be able to specialise in devolved areas to provide services to the Welsh public.

“I think the separate jurisdiction would help develop the capacity to service the needs of clients – whether they are local authorities, or someone pursuing a case on behalf of their child.”

Meanwhile, MP Liz Saville Roberts argues that a separate jurisdiction would “turbo charge” Welsh legislation, creating a “better testing space for the law of Wales”, ensuring that laws passed by the Senedd have their intended effect. She claims that without its own legal framework, Welsh law can feel like “a bit of an afterthought”, within a “London-centric” system.

Queried about potential barriers this might create for lawyers practicing across the border of England and Wales in the case of a separate jurisdiction, she rejects the contention that this should be a concern.

“As things stand, practitioners already need to know that they're operating in a devolved environment and [are] applying different legislation, and even if they were operating within a different jurisdiction, we’ve managed to cope for a very long time with a separate jurisdiction in Scotland,” she argues.

“My own personal experience, having been a councillor as well, is that we’re very much acclimatised to operating different planning regulations in different areas. I have every confidence that solicitors will manage that change well, and to be blunt about it, solicitors will make money out of this as best they can -  it's about how we best serve the people of Wales, and at present the situation is sub-optimal.”

The case against

Others point to considerable practical, financial and political hurdles that make separation a difficult and potentially undesirable path.

Nearly everyone agrees that creating a separate legal jurisdiction would bring significant cost pressures. Jonathan Davies, Head of Wales at the Law Society, also voices his concern over a lack of resources. He says: “At this time, we can't see that there's enough skills, that there's enough money, [or] infrastructure to have a completely separate Welsh jurisdiction, which would involve separate Welsh courts, separate Welsh judges, a large civil service department - all of the kind of accoutrements that go with having your own separate legal jurisdiction."

Meanwhile, the Law Society worries that separation could create barriers to lawyers practising across the border of England and Wales. Davies notes: “At this point in time, the legal market in Wales is not especially big, and lots of solicitors could go out of business if they couldn't seamlessly practice cross border.”

He also observes a commercial argument for the present arrangements – noting that the combined England and Wales jurisdiction has a “very, very strong brand internationally”, and that “an awful lot of business comes from all around the world to operate under the jurisdiction of England and Wales."

Sara Tomazewski’s concern is less focussed on the legal professionals. She notes: “Given my practice area I think I'd be less concerned about the impact on the lawyers, and more focussed on the impact on the families.

“I’d be concerned about a postcode lottery. It would depend how varied legislative changes were. If it was going to be more favourable to place a child in England as opposed to Wales, then I would have concerns about the impact on families of that. […] an entirely separate jurisdiction rather than devolved areas might be more problematic.”

She adds: “There are benefits to having the devolved areas of law because they can be more focused on the economics of Wales which can be quite different from significant parts of England. I think there are advantages to being able to use resources that suit Wales as a nation. But like I said, I would be less concerned about the impact on lawyers and more concerned about the impact on families if there was too much disparate thinking.”

The politics

At present, there appears to be little political momentum for such major change.

Between 2017 and 2019, the Commission on Justice in Wales, which was set up by the Welsh Government, undertook a review of the justice system in Wales. It published its report in October 2019 to set out a long-term vision for the future of justice in Wales.

Widely referred to as the Thomas Commission report, it concluded: “As divergence increases, [it is important] to be able to identify the differences in the law applicable to Wales compared with England, and the distinct legal reality that exists in Wales. […] The risks that flow from the failure to identify the applicable law and to recognise the differences between the laws in Wales and in England far outweigh the case for continuation of the present approach.

“We recommend the law applicable in Wales should be formally identified as the law of Wales, distinct from the law of England.”

However, six years on from its publication, Jonathan Davies observes that the Welsh Government has been “slow to put any meaningful changes in place” as a result of the Thomas Commission.

Meanwhile, MP Liz Saville Roberts claims that now Welsh Government are “actually in a position where they could realise [further devolution of justice]”, the Counsel General seems to have “rolled back on that point of view” - which Saville Roberts describes as “a real volte-face”.

Speaking at the Legal Wales Conference in Bangor last month (October 2025), Counsel General, Julie James made clear that separation was certainly not on the horizon, stating: “As the law diverges, the recognition that Wales is already a de facto distinct jurisdiction will be harder and harder to deny. [...] But I want to be very clear that we are a long way from that place.

“We are unequivocal that at least for the foreseeable future there should continue to be a single England and Wales solicitors’ profession, a single qualification and a single regulator.”

Regardless of the wishes of the Welsh Government, any changes would require the support of the UK Government and legislation in the UK Parliament.

A tale of two price tags

A major point of contention within the debate is the cost. In 2018, the UK and Welsh Governments produced very different estimates for the cost of devolving justice, which Liz Saville Roberts describes as “staggeringly different”.

She notes: “The UK government's 2018 estimate was that the initial setup costs would be £101.5 million, and then additional costs after that about £37.5 million per annum. But the Welsh Government estimate was completely different – estimating set up costs of about £13 million with a £10 million per annum additional cost to follow.” (cited from ‘The Welsh Criminal Justice System: On the Jagged Edge' published by University of Wales press).

She adds: “I would think that the Welsh Government's cost [estimates] have gone up, because we're not talking about 2018 anymore. But what you then need to consider, of course, is that if you can actually control justice in a way that reflects your political strategies, you may, in the longer term, be reducing costs.”

The stark disagreement on both politics and price has led many stakeholders to shift their focus from the choice between full separation and business as usual to the question of: what incremental changes can be made now?

The path forward

The future may not be a choice between the current system and total separation. As Head of Legal at Carmarthenshire Steven Murphy observes: “we’re moving on a continuum”.

The focus for many is on improving the current system and taking smaller, more manageable steps.

For the Law Society, the priority is making the current distinct body of law in Wales work better. As articulated by Jonathan Davies, this requires tangible improvements - including properly funded court infrastructure, a system of education around developing Welsh law, a “sympathetic system of regulation” and a “well-funded area” where one can access all of the laws that are applicable in England and Wales, so practitioners can be sure they are giving the right advice to clients.

Meanwhile, the Welsh Government is already working to create a “single first tier tribunal for Wales”. This would bring various Welsh tribunals, which handle disputes in areas such as Education, under one unified structure. Davies describes the tribunals as “the embryonic Welsh legal system”, suggesting they may be a good area to build upon, in the beginning of a bigger journey.

Further, rather than seeking control over the entire justice system at once, the Welsh Government is focussed on devolving specific areas first. The key priorities are probation and youth justice, which Counsel General Julie James describes as “the right starting points for our devolution journey in justice”, as they align closely with already devolved areas like health and education.

For any further devolution of justice to gain its support, the Law Society has laid out three non-negotiable conditions: any change must be fully funded by the UK Treasury, there can be “no barriers whatsoever” to practitioners practising across the border of England and Wales, and an independent regulator, such as the SRA, remains the regulatory authority across the jurisdiction.

An unfinished journey

The tension is clear. Wales possesses a distinct and growing body of its own laws, creating a unique legal landscape. However, the practical, financial and political barriers to establishing a fully separate legal jurisdiction remain high.

Ultimately, the decision to create a separate legal jurisdiction for Wales is a political one, and will depend on whether the political will emerges, both in Wales and at UK level. For now, the consensus seems to be that gradual change is the most likely way forward. As Jonathan Davies of the Law Society observes: “Devolution is always an evolutionary process, not an event.”

Lottie Winson is a Reporter at Local Government Lawyer