|
 |
| |
THE IMPACT OF THE LAST THREE YEARS
ON THE
COURTS, TRIBUNALS AND PROFESSIONS
|
INTRODUCTION
|
| The creation and early development of the
National Assembly for Wales has led to significant institutional
changes in the administration of justice in Wales. These
changes support the Assembly in its task and also act
to devolve judicial functions that were previously unavailable
in Wales. |
Further, the practice of law by the professions,
whether it be by academics, public service lawyers, in-house
company lawyers or in private practice as solicitors or
barristers, has to take account of the activities and
initiatives being undertaken by the Welsh Assembly Government
and, in turn the professions feed back to the
Welsh Assembly Government the particular issues that they
face in Wales today. The process of interaction between
the National Assembly for Wales and the professions has
started. |
THE COURTS
|
| The Structure |
| For most purposes concerning the administration
of justice, which is not of itself a devolved function,
Cardiff, Mold/Chester and Swansea, are the main judicial
centres. Each is a Civil Justice Centre which serves as
a "trial" centre and each has a major Crown
Court. |
| The reforms to Civil Procedure that were
instigated by Lord Woolf in 1999 saw the creation of Civil
Justice Centres and designated Civil Judges. The reforms
have led to speedier procedures and are generally considered
to have been a success in simplifying civil litigation
where possible and speeding up the bringing of cases to
trial. Whilst the efficient use of judiciary and creation
of effective administrative centres has been largely achieved,
there has been closure of some outlying courts and transfer
of civil business to the trial centres. |
Appellate Courts
|
| The Court of Appeal Civil Division sat
in Cardiff for the first time since its creation in 1875,
in October 1999, and has undertaken regular sittings since.
The Court of Appeal Criminal Division also sits regularly
in Cardiff. |
| The Employment Appeal Tribunal first sat
in Cardiff in March 2000 and has been undertaking hearings
regularly since then in Cardiff. |
The Civil Courts
|
| The Mercantile Court of Wales and Chester
opened in Cardiff in December 1999 and has carried out
its business in Cardiff and at the other two trial centres
since that date. |
| Wales now has the full range of civil courts.
In addition to the ordinary civil courts of Queen's Bench,
Family and County Court, the Mercantile Court joins the
Chancery Court and the Technology and Construction Court
to complete the set. |
Judicial Review Applications and the Administrative
Court
|
| In anticipation of the need to deal with
devolution issues, a practice direction was produced in
June 1999 which enabled judicial review cases to proceed
in Cardiff and to be heard in Cardiff. In addition, the
Administrative Court has been sitting, and continues to
sit, in Cardiff, Swansea and other locations in Wales
and the senior judiciary have made it clear that they
will support efforts to locate hearings in Welsh public
law cases in Wales. There has been very little take-up
in the use of the Administrative Court and judicial reviews
remain rare. |
Some issues
|
| 1. |
There has not been the emergence of public
law challenge through the courts. The Administrative Court
remains under-used and private practice has not seen the
emergence of practitioners specialising in undertaking
such claims for aggrieved parties on a regular basis.
Some consider that the reasons for this include factors
such as, there is no tradition of public law legal challenge,
the specialist practitioners are thin on the ground, the
full extent of the constitutional changes are not yet
understood, and those bodies that may be in a position
to challenge the Assembly do not wish to imperil a critical
relationship. |
| 2. |
The reduction in the number of trial centres,
combined with changes that have taken place in Legal Aid
franchising, has led to concerns that access to justice
for rural Wales and the Valleys has been significantly
diminished. There is a view that the Court Service has
failed to take full account of the particular requirements
and interests of rural Wales and the Valleys. Factors
such as social exclusion by denying ready access to justice
to people who live in such areas, and a failure to take
account of the true costs associated in getting to trial
centres, are part of this debate. |
| 3. |
The Welsh Language Act of 1993 has been
acted upon in the administration of justice. In 1998 and
1999 Practice Directions formalised the procedure. Bilingual
forms are provided wherever practicable and there is a
steady growth in the use of Welsh in the courts. Academic
work is currently being undertaken to provide an agreed
legal vocabulary for the benefit of all. This work is
essential to the further development of law in Wales.
Problems still remain in relation to ascertaining Wales
legislation, but Cardiff Law School, in
March 2002, launched a website (www.wales-legislation.org.uk)
which helps considerably. Easy ascertainment of all legislation
applicable in Wales remains an issue |
THE PROFESSIONS
|
Background
|
| There are approximately 3,000 solicitors
practising in Wales. Of these approximately 2,400 work
in private practice in 480 law firms. There is a predominant
cluster of law firms in South and South East Wales. Private
practice firms earned approximately 66% of the average
fees earned in England and Wales as a whole; excluding
London. Average earnings of qualified, employed solicitors
in rural areas of Wales are as little as £13,000. |
|
The Bar on the Wales and Chester circuit
comprises 300 and is the smallest in England and Wales.
|
| There are a number of distinguished Law
Schools in Wales. |
| In macro-economic terms Wales is skewed
towards manufacturing rather than services. Manufacturing,
whilst world class in some instances, is a slower growth
sector. Wales needs fast growing service sector jobs in
areas such as law. Whilst law is an important part of
the Welsh economy, being responsible for 1% of Welsh GDP
(compare 1.8% agriculture and 3% finance), it is the case
that the service sector in Wales needs to expand significantly
to provide faster growth and better paid employment for
the whole economy. This analysis informs the objectives
set by the National Assembly. |
Initiatives
|
| The Welsh Assembly Government has declared
that the Financial and Legal Services sector is to be
the fifth sector forum created after Welsh Electronics,
Welsh Automotive, Aerospace and Call Centres. The purpose
of the Financial and Legal Services Sector forum is information
exchange, public/private partnership co-operation, to
influence policy, to encourage networking between businesses
and between business and government, and to identify areas
for government activity or support. The legal sector is
therefore identified as essential to the economic development
of Wales. |
| There have been created several specialist
Welsh professional associations, the Wales Public Law
and Human Rights Association, the Welsh Personal Injury
Lawyers Association and the Wales Commercial Law Association.
Specialist links between practitioners, the judiciary
and academics have been created to foster the development
of best practice and business development. |
| The Counsel General to the National Assembly
for Wales has created the Legal Wales Standing Committee.
The members of the Committee are drawn from all areas
of Wales and Welsh legal activity and the purpose of the
Committee is to consult and/or make representations to
the National Assembly for Wales or the United Kingdom
Government, to promote the interests of the legal community
in Wales and to provide a forum for the formulation of
views which may affect the administration of justice,
teaching of law, or provision of legal services in Wales. |
| These initiatives are proceeding and their
full effect is yet to be ascertained, but all reflect
a cross boundary approach to the development of legal
services and skills. |
SOME ISSUES
|
Rural Wales and the Valleys
|
|
Many law firms in rural Wales and the
Valleys are experiencing difficulties. In their local
marketplaces there is less money available to spend
on support services as agricultural and traditional
manufacturing incomes have fallen. At the same time
structural changes that are occurring in the legal marketplace
generally have affected them particularly. Conveyancing
no longer cross-subsidises other legal work, the emergence
of e-business competitors is gaining momentum (e.g.
computerised personal injury no win no fee agencies),
Legal Aid franchises, either because of insufficient
size or resources, are not being obtained and insufficient
resources and skills training generally are available.
These firms are integral to their communities and attention
is now being given to finding ways in which to counteract
the forces that they are subject to. The severity of
this problem has worsened in the last few years and
attention needs to be focussed on what measures can
be taken.
|
The Bar
|
| Whilst a Mercantile Court has come into
being, a specialist Civil Commercial Bar has not. Attempts
at merger or consolidation to create a group of specialist
civil barristers have not been successful. The opportunity
to develop specialist civil commercial skills, which can
be deployed outside Wales as well as inside Wales, remains.
The Wales and Chester Bar at present still retains a dependence
upon criminal work, and the emergence of Civil Barristers
who have particular expertise in specialist legal areas
and who project and market their skills is awaited. Steps
are being taken to address this issue. |
South, South East and South West Wales
|
|
There is a predominant cluster of legal
services in this area. The problems of the Valleys have
been referred to above. Within this group also there
are leading Law Schools, the office and staff of the
Counsel General of the National Assembly for Wales,
the four or five law firms of size who operate frequently
on a UK basis and many experienced public sector lawyers
and in-house Counsel. For this group the creation of
a Centre of Legal Excellence that will serve the increasingly
complex demands of the Welsh marketplace as well as
attract work from outside Wales, is emerging as an objective.
At present many of the constituent parts are in place,
but the groups involved are unco-ordinated. This may
change through the initiatives above.
|
| All within this group face issues concerning
training and the need to develop higher skills. Whilst
cost levels may be lower than other areas of the UK, there
is a particular need to ensure regular training programmes
and the attainment of best practice. |
SUMMARY
|
| The Court structure has been put in place
to support the National Assembly for Wales. The legal
sector has been identified as a core sector for growth.
The professions have created their own specialist associations
and started a process of dialogue with the Assembly. Much
remains to be done to establish a Centre of Legal Excellence
in Wales and to ensure full access to justice throughout
Wales. |
|
|
|
