Huw Williams, Member, Working Party, The Law Society, Partner – Edwards Geldard

Emyr Lewis, Partner – Morgan Cole Solicitors, UK Representative Council of Europe Committee of Experts

Vicki Chapman, Head of Law Reform, The Law Society

Lord Richard, Richard Commission

Ted Rowlands, Richard Commission

Tom Jones, Richard Commission

Sir Michael Wheeler-Booth, Richard Commission

Paul Valerio, Richard Commission

Dr Laura McAllister, Richard Commission

Peter Price, Richard Commission

Lord Richard

Can I start off by apologising for keeping you waiting. The reason is basic and selfish. We did not finish the previous one until about quarter past one. Sorry we could not let you know in time.

Secondly, I wonder if you would be kind enough to introduce yourselves for the transcript so we have it on record who you are. Thirdly, would you be kind enough to go through the issues for five or ten minutes, and then we can pursue whatever issues we would like to.

Huw Williams

Bore da. My name is Huw Williams and I am here as a member of the working party of The Law Society. I am also, my professional practice background, a partner in a firm of solicitors Edwards Geldard, with a Cardiff office where I practise in the areas of public law, matters such as planning, matters of that sort. Vicki Chapman on my left is head of Law Reform at The Law Society. On my right is Emyr Lewis, who is a partner in the firm of Morgan Cole, Cardiff and Swansea offices, and he is also the United Kingdom representative on the Council of Europe committee of experts monitoring the implementation of the European Charter. His specialist work is commercial and public law. Before I talk to the paper, I should apologise. There were going to be four of us. Roy Morgan of Morgans Solicitors in Cardiff, who is a criminal law specialist, unfortunately injured himself playing cricket last night and was rendered immobile. We are one down. The way that we would like to approach the paper that you have had is that Vicki will open by talking briefly about the interest of The Law Society in England and Wales as a whole in the process that this Commission is currently engaged in. I will then talk to the key points in the paper you have had, and Emyr will amplify a few of those points and then we will be happy to take questions. I will ask Vicki to start.

Vicki Chapman

I want to start with an overview of the Law Society in England and Wales and their interest in these matters.

As you are no doubt aware The Law Society both regulates the solicitors' profession and represents solicitors in England and Wales. You have at the back of the paper that you have been given some statistics about the current make up of the profession. There are more women now coming into the profession and more people from ethnic minorities. We do not at the moment have a detailed breakdown about the profession in Wales, but we are gathering that information at the moment and that should be available late summer or autumn of this year and we will be happy to let you have that information when we have got it. The Law Society has an active interest in law reform in the public interest and our interest is in seeking to ensure that legislation is democratic, meaning based on public consultation and scrutiny, that it is planned, that it is workable, effective and carefully implemented, and that it is accessible in both language and location. The Law Society has undertaken a range of law reform work over the years, in particular commenting on proposed changes to law and procedure. Solicitors of course practise, put the law into practice every day. When it is ambiguous or unclear the consequential problems have to be explained to the clients whose personal and business lives may be severely affected by that. We believe it is very important that both proper consultation at an early stage to look at the potential impact of any legislation, both those that are intended and those that may not have been intended. We welcome the moves for greater pre-legislative scrutiny, in particular the greater use of draft Bills and in cases now where there is a specific Welsh provision for clear identification of those provisions. Much of the Society's law reform work is undertaken with the aim of seeing legislation on the Statute Book, which is both workable and practicable and it is very important in particular that legislation is effectively disseminated. The greater use of secondary legislation to spell out details can make that much more complicated for both practitioners and clients in trying to identify what the current law is. For both practitioner and the public there is an additional complexity in seeking to identify the law as it applies in Wales, which may be different from the law in England and may come into force at a different time. Therefore The Law Society very much welcomes this opportunity to be able to discuss with the Commission these issues as they particular impact on Wales and Welsh education.

Huw Williams

I will follow on from that by summarising the points in the longer paper. I think I should mention that clearly the paper sets out the views of The Law Society in England and Wales as a whole. I appreciate, as we go on in the course of the afternoon, you may field various questions. We will be happy, Emyr and myself, to talk in a personal capacity and make that distinction at certain points.

Lord Richard

In England and Wales? Your English compatriots have endorsed the proposals in this document?

Vicki Chapman

Yes.

Huw Williams

We have looked at really two broad headings. First of all is legislation in the Welsh context and secondly is the broader issue of the legal institutions in Wales and how it relates to legal institutions in the UK. Dealing first with legislation, this has been a subject which has been circulated in numerous submissions to the Commission. The scheme of the legislation in terms of the areas of activity referred to in the Government of Wales Act, the 18 fields which are defined, really have the common characteristic of being concerned with the organisation and delivery of public services such as education, health, highways, and so forth. It follows from that in terms of the practical impact on legal practitioners that the sort of lawyers who have been acquired into the operation of the settlement so far with knowledge and experience of the legislation really are those who work in public bodies, in the Council general and legal service generally, Local Government, and those private practitioners who tend to advise private clients or the Public Sector on those devolved areas, health, education and environment, Local Government law. These tend to be fairly specialised practitioners and they would tend to know their field and to have acquired a working knowledge of the devolution settlement and to an extent they have come to live with some of the complexities.

However, that is not to say that the settlement does not affect every solicitor practising in England and Wales. There are instances where, for example, a conveyancing solicitor would need to have learned for a period in 2000/2001 the law relating to land was different in England and Wales because England has implemented certain provisions and Wales has not. Likewise solicitors practising in the medical negligence and injury field at certain times need a knowledge of how the health service in Wales has been organised and how functions and responsibilities are distributed within that arrangement.

Therefore, the Society says, as a general point, every practitioner is entitled to look to ensure in the devolved system applied in Wales the sources of legal authority can be tracked clearly going down from Westminster, primary legislation through Assembly instruments and down to the third tier of documentation, the soft law elements, the circulars, the guidance, and this other large body of relevant material. I think that is the position in terms of the way that the legislation of Wales has improved somewhat during the first session of the actual Assembly.

Vicki has mentioned draft Bills, explanatory notes and possibly a greater need to be aware of the need for consistency where the National Assembly is dealt with in primary legislation. Nonetheless we still have this situation that the areas of devolved activity remain ill defined in terms of their boundaries and, although I have not looked at it in detail, I did note a couple of days ago looking at the Bill that deals with emergency planning in the wake of September 11 now infers functions on the National Assembly as the planning body for Wales. There is another area of things that are coming up again. That sort of consideration of the general problem then leaves consideration to what the solutions are.

Clearly the Society takes a broad view on this and I think its views can really be summarised as follows, that, if the status quo is to be maintained, then there needs to be certainly attention given to the mechanisms for the joint scrutiny of primary legislation highlighted by the House of Commons Committee Inquiry into the Welsh Affairs Select Committee of primary legislative procedures as it affects Wales. It has been issues such as passage of the Planning Compensation Bill, which have indicated the difficulty of policies made in Wales being argued in Standing Committees composed largely of English MPs who have no relation with the issues.

If there is to be a change, and obviously the Society recognises this raises political issues that is probably beyond our remit to speak on, then it is our view that there is certainly a technical legal argument for saying that ascertainability of the laws in Wales will be improved by a settlement that confers primary legislative powers on the National Assembly of Wales. Why should this be the case? Well, in addressing that, the first thing I need to do is to address one of the solutions which has been suggested, which is the idea of consolidation, something the Welsh Affairs Select Committee were keen on. I do not think that consolidation of legislation at the Westminster level is going to prove to be a satisfactory solution. The consolidation Bills always struggle to find time in Westminster in a programme in any event. They will work where you…

Sir Michael Wheeler-Booth

Consolidation Bills are subject to a very special procedure at Westminster and they do not take much time within Parliament. They take time for drafting and for the joint committee chaired by a Law Lord that looks at them, but on the floor of either House they take negligible time, so I do not quite follow your proposition it is difficult to get time from the Parliamentary point of view.

Huw Williams

Correct me as far as that is concerned. Yes, it is a special procedure for consolidation, but my other recollection is consolidation is quite a technical aspect in the drafting.

Sir Michael Wheeler-Booth

It is very technical from a drafting point of view, but that is quite a different issue from Parliamentary time or any problem like that.

Huw Williams

In the paper I say, in terms of examples I have given, there are some Consolidation Acts that have passed the test of time and others – the Planning Act 1990 was being amended and the Education Act 1996, which replaced the old 1944 Act – which did nothing to stem the flow of amending legislation.

So I think the point that a Consolidation Act in many cases acts as a sort of full stop on the legislative activity and produces a code that then remains the same for a period of time is frequently not realised, especially in areas of high political interest. The Society certainly, however, supports a view that, if the National Assembly was in a position of being able within devolved fields to begin to formulate its own Statute Book for Wales, then it could gradually begin to work through the inheritance of Westminster legislation at the same time as it formulates its own new proposals for Wales, and I think over a period of time you would begin within the devolved fields to have a coherent Statute Book within those fields which would by and large replace the Westminster legislation. From the practitioners' point of view, once you knew your subject matter fell within a devolved field, and you knew, if you then went to the Welsh Statute Book, that is where you would find your law. Of course, none of these systems is perfect, but there will be inconsistencies around, but as a broad guide ascertaining the law in Wales that is the situation we will arrive at and I think that is to be aspired to.

Lord Richard

Could I interrupt for a second? In paragraph 20 you say the principal difference between primary powers were conferred on the National Assembly's inheritance at Westminster primary legislation more easily made available in the form of a digest. Why can they not do that now?

Huw Williams

The reality at the moment, as far as that is concerned, is that the publication of legal texts in England and Wales is highly dependent on commercial publications. The commercial publishers are not interested in putting the effort into producing consolidated text, if I can put it that way, and therefore we do find ourselves at a disadvantage. It does raise an important resource issue that I know has been touched on in other papers in terms of the fact in that other jurisdictions of a Federal nature the government takes upon itself the task of publishing Statute Books on a regular basis. In a sense we have had the luxury of an active and enterprising publication sector in this country for so long we have come to look at that as being the norm. But from the point of view of producing a digest as well it is over a period of time as one moves to greater distinction between the Westminster Statute Book and Wales Statute Book you have those Acts.

Lord Richard

Over the months we have heard a lot about ascertainability and they are all very good points. As a practising solicitor, if someone comes to you with a query, where do you start?

Huw Williams

If you take it as a sequential exercise, you would start off with the Act, the Transfer of Functions Order. Once you have become familiar with it, as it were, you can probably go through it mentally. There would tend also to be the question of whether it was new legislation or old legislation. You would go to the place that the Act of Parliament itself that conferred specific powers that had been transferred. You would then establish whether the point that you were concerned about was dealt with in the primary legislation. Depending on the nature of the primary legislation you might have a question whether the primary legislation had been divided by the transfer functions or a particular bit of that function had been retained by a Secretary of State.

Dr Laura McAllister

The Wales legislation on line, if you do an initial electronic search, we were told by Cardiff Law School it was possible to isolate those particular aspects once you had keyed in the information.

Huw Williams

That will take you so far but it suffers from not having access to the raw text of the legislation. The other point where it does not fit all that usefully, I have to say – and I say this with some reluctance because I recognise it is important pioneering work and Emyr might like to comment in a second – the other difficulty is not a lot of lawyers do their researches. We are dependent on large loose leaf texts that the legal publishers publish and they are these works in which any level of order you think of size – some run to nine volumes – and these tend to be your everyday tools. So you would tend to use Wales law online and that really may be a help to bookmark where you should go into those texts. Sometimes, if it is new legislation, you then go online to things like the HMSO to find the Order in the Assembly section. But it comes back to the digest. Most practitioners, the main practitioners look at the updating and the texts are aligned with amendments. The main problem is thinking what has happened in the 6 months since this volume was last updated.

Sir Michael Wheeler-Booth

I quite follow that point and you pointed out the benefits that flow from commercially produced texts being kept up-to-date, but why has it happened is there is a sufficient fund of, or reservoir of solicitors in England and Wales who are willing to pay for this and who can pass on the expense of paying for the productions by the legal publishers, which are expensive, to their clients, because there are a lot of clients, and the profession makes a lot of money out of these clients. But, when you come to just the specialised area of Wales, the number of solicitors and their income from clients is very much, very much lower, and then you of course are in a real problem. Is that not really what you were saying? What I am trying to get at is what the underlying truth of the situation is.

Huw Williams

I am grateful to you for being so concise. The other point which also is difficult for legal publishers is that they at the moment do not have the facilities. All this is done online anyway; they do not have the facilities to quote with the final text of it as well, as I understand it.

Emyr Lewis (In Welsh, then interpreted)

It is all in relation to the bilingual legislation, which of course is a requirement under the Act. The publishers to date have not prepared these texts on line. The second point that I would wish to make is following on your point, regarding the comparatively small number of lawyers and clients in Wales, it is important to bear in mind that the law in Wales is relevant to any solicitor or lawyer within Wales and England, and a very large number of public bodies, international businesses and British businesses working within Wales and seeking lawyers that use solicitors in England to advise them and those solicitors also need access to this, not just only the businesses. If we consider in the field of childcare you could have a situation where one parent may live in England and the other parent may be living in Wales and the child may be in Wales, and the parent in England is seeking advice regarding a situation under the Care Standards Act which is different in Wales to that which you have in England. So perhaps you have the case where the client needs a solicitor who knows the situation in both countries.

Lord Richard

That is not an accessibility point really, is it?

Emyr Lewis (In Welsh, then interpreted)

I do know where to find it. Would you prefer me to speak English?

Lord Richard

No.

Emyr Lewis (In Welsh, then interpreted)

It is an issue which is to do with how easy it is for practitioners of the law to get a hold of what the law states in Wales. Wales legislation online does not give you any more than Huw has suggested. It is a reference to which clauses of which laws have been transferred under the Transfer of Functions Order. It does not give you the text of those clauses and neither does it give you the text of the subordinate legislation. What is required is a corpus of the resource and I believe that an on-line resource would be the best way of dealing with that matter, which would enable you to go from the simple question your client is posing, "What is my position?" to be able to give them an answer without having to go through the whole confusing amount of legislation.

Lord Richard

I do not want to monopolise the technical level. You have got so far down the road to find what it is that you want, to look up all the statutory instruments. Are they all collated? Is there any thing that you can use? There is only nothing like Halsbury?

Emyr Lewis (In Welsh, then interpreted)

Halsbury as part of the process, the Statutes, the Law Digests, every law of the Acts of Parliament, Halsbury will, in relation to Welsh provisions in the Statutes, sometimes give you pointers, because they have been taking that into account as part of the general process of continuing to maintain the work up-to-date in the England and Wales context. But you then do not get led from that into the fully printed word.

Lord Richard

How do you get into that?

Emyr Lewis (In Welsh, then interpreted)

The only way you get bi-lingual information you get the instrument or go on line.

Lord Richard

Leave bi-lingual out of it. You know what it is you are trying to find out, you have discovered it is a law matter, you have got your dictionary of Statutory Instruments. Then what do you have to do?

Emyr Lewis (In Welsh, then interpreted)

The kind of way in which it works? I use Halsbury's Statutes in electronic form which works through the net, the web, and the Statute, if you look at it, it will refer to supporting legislation that has been made and frequently there is an electronic link from the text of the Statute to the subordinate legislation text and this is a very useful process in order to do the searching and researching. We do not have legal libraries any longer. Much of the subordinate legislation that has been transferred to the Assembly arises from subordinate legislation from the past and so frequently you will get Assembly subordinate legislation reforming a statutory instrument which has been made in the past by the Secretary of State and making the links between those various pieces can be very, very difficult on a practical level at one point, or another is the electronics fail and you have to go and look at the paper route

Huw Williams

6th May, I broaden this now.

Ted Rowlands

We interrupted with our questions, as I understood it, whilst Huw was making his presentation.

Huw Williams

I am happy to proceed generally.

Ted Rowlands

Paragraphs 26 to 29. Anyone reading them could only come to one conclusion. The Law Society for England and Wales favours the transfer of the Lord Chancellor's responsibilities for the court service to Wales. Is that a reasonable conclusion to draw?

Huw Williams

It would be to say it is a matter that should be debated.

Ted Rowlands

The Law Society has not come to any conclusion?

Huw Williams

I do not think the debate within The Law Society has been deep or broad enough for us to come to a firm view on it, but these are issues firmly on the table and been brought to the processes that we have been engaged in. As people who have done that part of the paper, what I think we are saying is that there are clearly a number of issues affecting what you might broadly call the administration of justice in Wales in the wake of devolution, which call for the taking of a specifically Welsh perspective on them. In preparing this paper I think those responsible for it grappled with the question of whether we felt that, within the constraints of time we had to prepare this, whether we could come to a definitive view on this or not. We came to the conclusion that you could not be absolutely definitive on it. What we could say is that this a debate that needs to take place and the Assembly ought to be in a position they can play a role in that. And we mentioned in the paper specific areas of concern that are relevant to the sort of issues the Assembly is now taking an interest in, what you might call the broad social justice portfolio that has been established to lap around the shores of the justice system in Wales. I think these are issues that in time will come to be considered. The paper touches on some of the ways forward that have been discussed. I am happy to canvass those.

Ted Rowlands

I want clarification. Anyone reading that can only infer one thing from the burden of the case: you would translate responsibility of Magistrates Courts to the justice in Welsh Assembly as opposed to leaving it with the Lord Chancellor. But the Society has not formally endorsed that as recommendation to the Commission?

Huw Williams

That is not the Society's policy. The Society's policy is it has identified these issues which are in the paper.

Ted Rowlands

It has not found a solution?

Huw Williams

We have not thrown our weight behind a particular solution at the moment. Some of the potential solutions and options are identified in the paper. It will take a further process of consultation with the members of the Society and through the Chancery Lane process to come to a definitive view.

Ted Rowlands

From the Society's working knowledge and working relationship with the Lord Chancellor's department, would it be that the department would fight tooth and nail to maintain the powers that it has at the moment in the case of the administration of justice in Wales? From your perception and knowledge of this department how far do you think it would be willing to go down the devolution path?

Huw Williams

I will ask Vicki to say in a second. When I wrote the first draft of this paper I would probably have said we had a fight on our hands. In the last 10 days we have had this constitutional earthquake and your guess is as good as mine in terms of when it settles down again what the answer will be. Having recognised constitutional affairs these islands now requires a Minister to look after them. These sorts of arguments will have a favourable impact, more favourable than they might have done.

Vicki Chapman

I do not think I can say what the Department of Constitutional Affairs' view is. We have a situation as it is at the moment. Things like this have been put on the table, but we would not comment on how the Department might react if the idea was put to them.

Ted Rowlands

Do you think the burden of the case you make there lends itself to devolution of power?

Huw Williams

I think that, if there is any further expansion of the sphere of devolution, there should be a parallel move to make the reality of the administration of justice reflect that. I think, even if the status quo remains, I still think the Assembly should be given a more formal role in certainly taking account of Welsh needs in relation to the administration of justice. That would be my personal view.

Ted Rowlands

In the great debates going back to the 60's about the Welsh office there was a concept of oversight as opposed to transfer of executive function formally. You can see in the Assembly beginning a process of getting its hooks into the whole world of administration of justice by some kind of oversight function?

Huw Williams

It is a matter of how bold people want to be. A first stage will be to recognise that the Assembly in relation to, for example, the activities of court service in Wales, the Legal Services Commission, and that part of the Home Office that is concerned with the organisation as opposed to the operations of the police service are saying we should be given some formal status in relation to having things taken into account. I think that, if you were going down – let's postulate – the primary powers for a moment, in that sort of situation, in my view, you would be looking at a situation that justified the courts system taking on a distinctive Welsh complexion. I know that during the course of the seminar that was given to the Commission in February there was a paper presented by Davies that did go into some of the options in greater detail in comparisons with Northern Ireland. I can see a situation where at the very least the High Court in civil matters and the Crown Court in criminal matters took a devolved character. I think that they would probably – I personally would stop short of creating a separate jurisdiction in the Northern Ireland sense, because I rather think the reason Northern Ireland separated jurisdiction is to do with Northern Ireland, and we are an England and Wales legal community in the sense of basic principles of criminal and civil law.

Ted Rowlands

Give an example to the Commission of where the Assembly should have some kind of either oversight or indeed look over the closures of Magistrates Courts.

Huw Williams

If you were to ask a broad range of practitioners in Wales as to what would they see as being one of the key issues in the way they think the Assembly ought to have a role and make a difference to court closures and distribution of legal resources around Wales, I think that would be top of the list. I think that, given the rest of Assembly policy in terms of social inclusion, this is an issue that is a factor on its agenda. There is an example, and we could repeat them, about Lampeter is big enough to have a university but not big enough to have a Magistrates Court. I think that may be at the moment, certainly I think from the centre thrust, is very much that justice can only be administered in large purpose by a Palais de Justice constructed at enormous expense. I suspect, as far as the users of the court service are concerned, they prefer a system with the courts in rather less grandiose buildings but they come out to where people are and the people did not have to travel.

Vicki Chapman

I wanted to add, without commenting on the primary legislation making powers or not, the whole problem of access to justice in terms of people having access to courts, people having access to legal advice, is a major problem. It is not one that particularly affects Wales, but large parts of England as well. The Society is very concerned about that in terms of ensuring people have access to good quality legal advice when they need it, which means not having to find the nearest legal advice three buses away and buses only run on Tuesday, but also access to courts. This covers both civil and criminal law, particularly where people have problems in the civil sphere, because they are much more likely to be politically invisible if your roof is leaking and you do not know you have any rights to get your landlord to try and repair it and you cannot have access to advice, you are more likely not to bother. If you cannot get access to good quality advice, you may not bother. I think that whole agenda of social inclusion and the importance of ensuring access to justice and legal advice is one that affects England and Wales.

Ted Rowlands

I spoke to Mr Hoone, the Minister in the Lord Chancellor's Office and he quoted me bus timetables.

Sir Michael Wheeler-Booth

Mr Williams, you make a very strong case in your paper, but one issue which you do not cover at all is any idea of the cost of doing all this. This government has done more for lawyers than I think any previous government ever. Of course in the long run doing more for lawyers means putting further costs on the public, because they have to pay for the lawyers. Has any thought been given to what the costs of carrying out the suggestions you make in your paper would be?

Huw Williams

The answer, as far as the Society is concerned, is no and that is why we have exercised the caution we have done in saying these are issues to be debated and not saying this is what will happen. All I will say is there are clearly sums allocated in the heads of public expenditure in terms of the court service in Wales, the buildings, the staff, and it is a matter to see whether the Assembly with the ability to direct those resources could come up with a solution that is relevant to the needs of the community in Wales and the way the system is.

Sir Michael Wheeler-Booth

Second question, which is not connected at all, is about your paragraph 23 and in particular the second sentence in it. This parallel process. I was very interested in this. What is really the point of this suggestion?

Huw Williams

I suppose, since I wrote the paper and the first draft of that paragraph, I have since had the benefit of seeing a memorandum that Professor Rawlings submitted to the Commission in May. I think, if you recall the paper, where he has two alternatives, Mark 1 and Mark 2. I think what I am alluding to there was possibly something similar to Richard Rawlings Mark 1 solution, where there is a level of primary legislative power devolved, but that Westminster still has a greater responsibility for stepping into the legislative process in Wales than is the case in Scotland and the Scotland settlement. When I framed this thought, what I was aiming at was a sort of fail safe mechanism whereby the continuing – it is a theory – right of Westminster to legislate for Wales was officially recognised and Westminster could step in it if it did not like the legislative proposals.

Sir Michael Wheeler-Booth

He made it clear Mark 1 was the less preferred. What would be the rationale of giving Wales a so-to-speak second-class version of primary legislative power? What is there to support it? Is it pure pragmatism about politics or do you think intellectually there is a case for it?

Huw Williams

I struggled intellectually. My way of looking at this: either you need two primary powers or you do not, but I recognise there are other people who do not look at it in that way and may be comforted by the thoughts Westminster still has a great handlin what goes on in Wales. That has been the case in Scotland for a whole variety of reasons, some historical, some political. What I am saying is, if the consensus is that that sort of element of comfort still needs to be there in the system, I think we can still come to a system that will give Wales some worthwhile primary legislative powers, will ease the legislative slot, but nonetheless makes Westminster's legislative responsibilities seem more explicit in relation to Wales than it is in Scotland. It is being pragmatic rather than being intellectually committed.

Dr Laura McAllister

Even in the Mark 2 model he talks a lot about the super convention that might apply to Wales. Can you give us your opinion on that, all three of you, in terms of potential weaknesses with that kind of arrangement. In Scotland we talked quite a lot to the non-executive part of the Scottish system, who told us that they were issued with scrutiny, particularly should Sewell motions be significantly amended, and the fact the responsibility for referral back to the Scottish Parliament, the Scottish Executive in terms of its liaison with the government in London, and, bearing in mind the closeness of the England and Wales relationships, the potential for using Sewell might be even greater in Wales with primary legislative powers and what sort of safeguards would they need to ensure that the Parliament, as it probably would then be in Wales, would have the right to scrutinise effectively a whole raft of so-called Sewell motions?

Huw Williams

My colleagues have not had the benefit of seeing Rick Rawlings paper, not that I am aware of. The Sewell process is extremely interesting, I think, and important, first of all because I think it is a development that no one quite expected, as far as Cardiff is concerned. I think it was considering the sort of aspects of the Sewell system that led me to the thoughts that I have been discussing with Sir Michael. If the Sewell system were to operate in relation to Wales, then it would possibly be different, because in Scotland at the end of the day the Sewell system is one that is open to the Scottish Executive, the Scottish Parliament, to decide whether they operate it. They opt into the Westminster system. It is not a case of Westminster saying it is better for you that we do this on your behalf and therefore withdraw the legislative power away from Edinburgh.

I suppose that then is the nub in terms of how you approach it in Wales as to whether you go the whole hog and Wales reflects Scotland, a Welsh version of the Sewell resolution – Wales could legislate for it; or do you turn the thing on its head and say Wales can legislate within these fields and Westminster to say it would be better? That is back to Mark 2 and Mark 1. If we went down the route that had this process available in Wales, the point about scrutiny is very relevant and probably because it has occurred almost by accident in terms of the frequency with which it has been found to be convenient to use it, I think that because Wales would be addressing the Sewell resolution issue with the benefit of the Scottish experience, I think it might well still raise some of the issues of joint scrutiny of legislation, that this was legislation being operated under a Welsh version of Sewell.

Ted Rowlands

If one runs with, you have been saying rightly, the way in which the Planning Bill was scrutinised in the Commons Committee stage – and I share your stricture very strongly – rethink running that Bill through as a whole for the Welsh Assembly. There will be a dozen or so clauses in the whole total Bill that will separate the rest from the composition issues. There will be common clauses. If you take that piece of legislation had been had under Welsh Assembly process, the whole of that Bill will have to go through the Welsh Assembly scrutiny system. The actual legislative time scale and legislative effort that would have to go into it and the scrutiny of it, on large numbers of clauses dealing with compensation issues, does that not present a very serious burden or difficulty?

Huw Williams

I think you need to bear in mind first of all the Welsh clauses in that, in the Bill which related to the statutory planning system, were then mirrored by a set of much longer provisions which implemented the ranging which related to England and that would be out of a Welsh Planning Bill.

Ted Rowlands

The compensation clauses were relevant.

Huw Williams

They introduced a new regime to this compensation. This is the sort of example where in a devolved system you would wonder whether in England and Wales you would want the compensation systems to diverge in any event. An obvious example, where the Assembly might say we have got to opt into those provisions and you have a Sewell case.

Ted Rowlands

If we were running this as a model of its kind, you would run the Welsh clauses entirely through the Welsh National Assembly and the compensation clauses of that Bill would have been as 8 were accepted or nodded through by the Welsh Assembly and dealt with and scrutinised at Westminster as part of the England and Wales planning.

Huw Williams

That is a possibility. The other thing you might have then, because of the impact, as it were, of the Sewell systems on the administrative programme, you might end up with two Bills, the England and Wales Planning and England and Wales Compensation Bill, that having been presented under a Sewell process. It comes back to legislative time. If you have stuff being dealt with exclusively in Cardiff, that releases up other time for a programme elsewhere. It is possible it might balance itself out in that way.

Peter Price

Take up the possibility of primary powers being the recommendation and the consequence in terms of administration of justice. This has been a field where you have advanced beyond the memorandum because the memorandum is not necessarily representing the collective and Wales society as a whole. If you went further into the primary powers, and wished to move down the line of devolving some aspects of administration of justice, what would be the views of the two Welsh practitioners as to where the line ought to be drawn, the sort of things that one would first move on in devolving administration of justice?

Emyr Lewis (In Welsh, then interpreted)

Setting aside every personal view based on ideology, or anything like that, I think the starting point is what is practicable and what practically needs to be done in the Welsh context, and as far as I can see there are two kinds of things that practically need to be done. The kind of thing that is characteristically Welsh, which is not a question anywhere else, and the kind of thing that is a common problem throughout the whole of England and Wales, as Vicki has referred to, for example the access to justice, I believe that the central question then is, accepting that we begin by doing what is practically what practically needs to be done, do we say the Assembly is outwith this, or the Assembly is within this? If the Assembly is within this, what is it practical to give to the Assembly as a power in order to enable it to do this? That is the starting point for me. If we are talking about how public money is actually allocated throughout Wales in the context of the administration of justice, are we saying that those decisions are to be made solely in Westminster or solely in Cardiff, or in the form of a dialogue between Westminster and Cardiff?

I am not going to be prescriptive about the right way to answer to that, but I know that what we would like to see happening as a result of that process is that justice is administered in the most effective manner for the benefit of our clients in Wales. That is the bottom line. My personal view is that substantial input from the Assembly on the administration of that budget and also possibly the creation of legislation, whether it be primary or subordinate, would be very valuable, because it could set the priorities and need of the people of Wales first. But, to deal with the other things, the problems, or those issues that appertain to Wales specifically, primarily, I am thinking in particular about the way in which cases involving Wales are actually dealt with, where they are heard, and in which language people are permitted to speak before the tribunals and the courts that are hearing the cases. Once again, because of the way in which things are administered at present there are things that we could do in Wales that we could not do in England, in order to correct that. I would imagine that taking administrative steps possibly or possibly legislative ones is something which the Assembly should be able to do.

I am responding, well I hesitate before making the same point generally as regards the discussions we just had with Huw, because I know you want to move the discussion forward, but once again in relation to the mutual relationship between Cardiff on the one hand and Westminster on the other hand, to be completely ideologically neutral, what we really need is a process that works effectively for the benefit of the people of Wales – and I am speaking personally here now – and the creation of the new department within the Government now that deals with the constitution does offer an opportunity to look at how the relationship between the two capital cities works, endeavouring to get procedures in place, whatever they may be, whatever the context is, that work for our mutual benefit. Forgive me for returning to the other point. Returning to your original point, I can see there would be a definite advantage for the Assembly to be involved with the kinds of things that you are talking about.

Huw Williams

I think that the line of demarcation between Assembly responsibility and I suppose what we must call the Department of Constitutional Affairs in relation to these matters leaves the question of redeployment of the resources available for the administration system. I think that the way forward, what I would like to see is that those resources are channelled through the Assembly, so the Assembly can take the decisions on in what manner do the courts sit, how are they organised. I think that, as far as actual administration of the justice system, dispensing justice, if the settlement were amended to confer primary legislative powers, it would be illogical not to adjust the court system to reflect the needs of that settlement, so that issues arising concerning the application of the laws in the Welsh Assembly then made were dealt with in the courts essentially based in Wales.

I think that again, taking a more pragmatic view, I do not think that leads one towards necessarily the Northern Ireland model, as I said a moment ago. We have to seek to maintain the recognition we have a unified England and Wales of the basic principles of civil and criminal law. I would envisage a system whereby the judiciary would, as it were, have a Welsh branch and that could take the form of the High Court and appellate judges who would by and large sit within Wales, and indeed selected with a view to their suitability, linguistic abilities etc., but they would remain collegiately part of the England and Wales judiciary and there would be change between the Judges, because I think that there are advantages to be gained in terms of the overall quality of the judiciary that we need to be maintained. I would see there being a Welsh division linked with the High Court and the Crown Court reorganised on a similar basis, but I would see the appointments to the judiciary, to the bench, being done on an England and Wales basis recognising the needs of Wales. That is entirely a personal comment, but it is how I would see it being done.

Lord Richard

Would you have appeal cases up to London?

Huw Williams

I think logic would suggest that there should be an appeal based in Wales. I am conscious there is debate over the quantity of business that would merit that, and I think that issue is one of the ones that tends to the view that retaining an England and Wales judiciary is the way forward, because it is much easier to have a Court of Appeal for all Wales that sits in Wales and draws judges from the appellate bench on an assigned basis rather than having a court that only sits in Wales and maybe you do not have enough to warrant its existence. One needs to be pragmatic about these things. You would have a system that reflected the realities of the devolution settlement.

Lord Richard

Can I thank you very much indeed for coming to us again.

Huw Williams

Thank you very much for seeing us.

Lord Richard

It was very useful. Your paper provoked a number of reactions.