Standing Committee for Legal Wales

Richard Commission Submission*

"… to provide a forum for the discussion and formulation of views and proposals for action on issues affecting the administration of justice, the teaching of law and the provision of legal services as they affect Wales and, in particular :

(a)  to co-ordinate responses to consultations on such matters by the National
      Assembly for Wales or the United Kingdom Government;      

(b)  where the Committee think it appropriate to make representations on such         
      matters to the National Assembly for Wales, the United Kingdom Government or
      any other relevant body.

(c)  To promote the interests of the legal community in Wales.

In broad terms the list of devolved functions represents a logical group of functions mainly related to social welfare and public service provision within Wales. One major gap exists in relation to Home Office functions, especially where these overlap with devolved functions (for example, Youth Offending Teams, the police, probation and prisons). Other gaps include pay and conditions in the education sector, and aspects of transport policy such as railways.

The SCLW feels that there should be greater devolution of the administration of justice. This would bring Wales more into line with arrangements in Scotland and Northern Ireland (see para g below). Difficulties arise in practice because the system of devolution in Wales is not asymmetrical and there appears to be no clear principle as to which powers are devolved (other than reference to the functions of the old office of Secretary of State). The SCLW favours the model for Scotland with its emphasis on the powers that should be retained by London rather than upon what functions should be devolved.

It is inevitable that problems will arise in coordinating policy implementation and administration in areas that involve a division of responsibility between Cardiff and London. Examples include drugs policies, youth justice, housing, immigration, education and university funding.

The Assembly is developing its experience and expertise in policy development and implementation. Within the devolved system, a number of important initiatives have been implemented in health and social care (in particular, the Children’s Commissioner), culture and planning. The main problem identified by the SCLW is that any policy initiatives requiring primary legislation have their priority determined by the Westminster legislative programme. This involves bidding for a slot for a Welsh bill in competition with English legislation, or taking advantage of an English bill on the same or similar subject. The latter may lead to policy formation being rushed in order to meet the Westminster timetable (for example the Planning and Compulsory Purchase Bill 2002).

The SCLW feels that the existing machinery is inadequate. It relies heavily on political agreements, memoranda of understanding, and concordats. The machinery needs to be more open, structured and transparent.

The House of Commons Welsh Affairs Committee in its report The Legislative Process as it affects Wales, (Fourth Report, Session 2002/03) identified many problems with the current system. Much of the evidence already submitted to the Commission identifies the difficulties in establishing precisely what the Assembly’s powers are. We endorse the sentiments of the Law Society that what we have at present is "a rapidly expanding and incoherent mass of statutory powers with no overarching logic."

b) Primary and Secondary Powers

i. What practical need can be demonstrated for the goal of primary powers?

The double scrutiny of primary legislative proposals is a major concern. The Assembly’s committees are providing democratic input into policy formulation. However, when primary legislation is required and the matter is debated by the Westminster Parliament, the Welsh policies debated in Wales are subjected to input by those who do not represent Wales. Welsh interests and needs may be lost within the greater UK wide law making process. In addition, the way in which standing committees are organised Welsh MPs do not play a distinctive or special role in considering primary legislation affecting Wales.

The lack of effective coordination between Cardiff and London and the unclear division of powers weaken the Assembly as a law making body and lead to the duplication of scrutiny. It is cumbersome and wasteful.

ii.If need can be demonstrated, in what fields is the need?

This is essentially a political decision. However, as a minimum, primary legislative powers are essential in all existing devolved matters if the current division of powers is to work effectively and reflect the wishes of Wales.

iii. Can practical help be given to assist in policy making in areas where lawyers have expertise?

We strongly support the idea of practicing and academic lawyers being involved in policy development. Lawyers in Wales are already involved in a variety of consultative fora that the Assembly has established. The establishment of a Wales Committee of the Law Society will widen the pool of practitioners participating in such activities.

One very effective way for lawyers (and practitioners) to be more involved in policy making would be the establishment of a Law Commission for Wales. As an advisory body on law reform to an Assembly possessing primary legislative powers, the Commission could, through the involvement of academics and practitioners, provide an impetus for the development of Welsh law.

c) The legislative process at Westminster

i. Are the powers given to the Assembly under legislation (other than the GWA) sufficient for the Assembly to carry out its functions?

The report of the Welsh Affairs Committee (noted above) identifies many problems with the existing system and is a useful reference work. It appears to the SCLW that drafting legislation at Westminster that devolves powers to the Assembly follows a fairly conventional pattern that is no longer appropriate given the democratic nature of Welsh government. There appears to be a marked reluctance to grant the Assembly broad secondary legislative powers in respect of the subject matter of a Westminster Bill. Furthermore, there has not been enough use made of the Henry VIII clause to give the Assembly the power to amend primary legislation (see Barber N.W and Young A.L. The rise of prospective Henry VIII clauses and their implications for sovereignty, [2003] Public Law 112).

ii. Are the powers for the Assembly adequately dealt with in Westminster legislation as a matter of form/layout?

No. There is no consistency of approach. See further the Report of the Welsh Affairs Committee.

d) The legislative process at Cardiff

i. Are the powers given to the Assembly easily understandable?

For the reasons outlined above, the SCLW feels that the powers given to the Assembly are not easily understood, which leads to a lack of public awareness of its role and powers.

ii. Is Assembly legislation reasonably accessible in comparison with secondary legislation issued elsewhere in the UK?

The provision of legal advice on Assembly legislation depends upon the legislation being easily accessible, along with the relevant case law. The lack of any interest by commercial publishers in the promulgation of Welsh Law and the reliance on the Assembly’s own efforts at dissemination is a significant weakness. The Cardiff Law School’s Wales Legislation On-Line service is an important and welcome initiative, but needs further investment if comprehensive and reliable coverage is to be realised. Whatever the outcome of the Richard Commission, the question of inaccessibility in comparison with legislation issued elsewhere will need to be addressed as a matter of urgency. If primary powers are given to the Assembly it will be essential to ensure that they are readily accessible in their bilingual form. The law schools and the profession in Wales should be actively involved in discussions as to how accessibility can be improved.

iii. How have the schemes under s.121 (sustainable development), s.114 (voluntary organisations), and s.113 (local government) affected in a practical way the legislative process?

The effect has only been an indirect one through the policy making process.

iv. How has the duty under s.115 (to consult with organisations representative of business and other organisations) worked in practice?

The SCLW does not have any information on how effectively the duty to consult has worked in practice.

v. Is the division between the executive and legislative functions now satisfactory? Is any modification needed to the GWA?

The de facto separation of the Welsh Assembly Government from the Assembly creates confusion. Whereas there may be political reasons for the continuation of corporate status, in practice there is a need for a framework that replaces the single corporate structure. The Assembly as a legislative or scrutinising body may wish to take a different position from the Welsh Assembly Government; it should not be impeded from doing so by its status as part of a single body corporate.

One difficulty that may arise from a single corporate body approach is when the Assembly requires separate legal advice independent of the Government. As a body corporate it can only have one authoritative opinion, whereas the Assembly and the Government may disagree. There is a compelling case for ensuring that the legal structures are consistent with the way in which the system has evolved.

e) Bilingualism

i. Does the lack of a standardised dictionary of legal terminology hinder the development of the use of Welsh in legal practice, education and training?

Standardised legal terminology is a prerequisite for the development of the use of Welsh in legal practice; without it we do not envisage a significant increase in the use of Welsh in legal practice, education and training. This is a major project and adequate funding must be made available as a matter of priority. The SCLW notes the example of the Irish Legal Terms Act 1945 and the Statutory Commission as a possible model for Wales.

ii Are there any comments on the form and substance of bilingual drafting?

Drafting should be genuinely bilingual and not translation. The requirements of bilingualism must be addressed at the stage of primary legislation. This further strengthens the case for the Assembly to have powers of primary legislation; the Westminster Parliament is unlikely to appreciate the implications of bi-lingual legal practice.

f) Criminal justice policy and priorities, and family law

i. How does the interaction between criminal justice and family law policy and devolved functions work in practice? Is it over dependent on soft law?

The current system is difficult to operate within the current division of functions. There are significant overlaps between health and social services and the criminal justice systems, which cause problems to professionals working in these areas (for example, drugs policy).

ii How could any problems be resolved, or at least mitigated?

It is highly likely that in any foreseeable devolution settlement that criminal law and procedure, and family law and procedure will remain the same in England and Wales. However, the SCLW supports giving the Assembly a formally recognised role in relation to policing plans as they affect Wales, whilst recognising the advantages of collaboration in, for example, the training of police officers.

iii Are the structures for dealing with it adequate?

As noted above, there is an over dependence upon political negotiation rather than clearly defined structures.

iv. Are there constraints in developing policy in criminal justice, crime prevention or family matters? Would policy be developed better in Wales? Would interdisciplinary coordination be better if functions were devolved?

Constraints do exist as the London based Home Office may take a different approach from the Assembly. This makes interdisciplinary working more difficult. The interaction between criminal justice and the family law is best decided at a Wales level. Social and economic conditions are sufficiently distinctive to justify maximising the opportunities to develop policy within Wales. Criminal justice priorities may differ between Wales and England; priorities determined in London may be inappropriate for Wales.

g) The possible recommendations

i. Although it is not possible to predict what the Richard Commission will recommend, two basic approaches are discernible:

• Preservation of the status quo with the same or greater level of devolved fields or functions
• The devolution of primary law making powers.

ii. What are the implications for the development of Legal Wales of each of these approaches?

If the status quo is maintained the impact on Legal Wales is likely to remain at or about the present level. The lack of clarity and the complexity of the current arrangements will continue. The devolution of primary law making powers will lead to a more coherent, accessible and identifiable body of Welsh law. A further effect of such a transfer will be to strengthen the argument for devolving the administration of justice and locating the court system more firmly in Wales (see below).

iii. Particular reference should be made to the impact on the courts working within Wales.

1. Is it possible to refine the existing system by developing the administration of the courts on the current basis or on an all Wales basis, whilst retaining the existing structures?

2. Should Wales follow the Northern Ireland model?

3. Should there be a Court of Appeal for Wales? If so, how would it operate?

4. Should there be any changes to the Tribunal system or the method of appointment to tribunals? If so what would they be?

There are a number of models for the future development of the administration of justice within Wales. One model is one where the court structure, and therefore the legal profession, in Wales are independent of that in England, even though much of the substantive law would be the same. Primary legislation would be necessary to establish such a system. This model could lead to the profession in Wales being isolated and deny Wales and England the benefits of working in partnership. Another model envisages the creation, within the unitary system, of more identifiable Welsh legal institutions. A Welsh division of the Court of Appeal could feature in such a model. Implementation of this model need not be tied to greater powers for the Assembly; it is clear that the need for such changes exist under the present arrangements. However, primary legislative powers would further strengthen the case for the greater devolution of the administration of justice as it would increase the amount of Welsh law requiring a more distinct system of courts. The SCLW feels that further research needs to be undertaken on what is an appropriate balance between the need to establish a distinctly Welsh dimension to the administration of justice, and the need to retain the mutual benefits of the links with England.

When judges are appointed, they should continue to be appointed on an England and Wales basis. This would enable them to remain part of a larger judicial college. However, the ability to continue to assign judges to sit on cases within the Welsh courts will ensure that judges with the appropriate experience and background hear such cases.

It follows that the administration and oversight of the Tribunals in Wales should mirror that of the courts and that all Tribunal business originating in Wales should be heard in Wales before the Welsh Tribunal system. As with the courts, it would be in the best interests of Wales for Tribunal members to be part of a wider England and Wales body, although the functions of the Council of Tribunals should be devolved to a Council on Tribunals in Wales.

h) An analysis of the economic Impact

i. What impact would any changes discussed above have to the economics of legal practice?

a. in the rural areas of Wales
b. in the industrial areas of Wales
c. to the major law firms
d. the bar

For rural areas the problem of access to legal services is a significant one. Devolving some of the functions of the Legal Services Commission to Wales may enable issues of access to be considered on a Wales basis and appropriate recognition given to widening access for those living in remote rural communities. This could also improve access to legal services within the industrial areas of Wales.

One major threat to the practice of Commercial Law in Wales is the winding down of operations in Wales by the major firms of accountants and other financial intermediaries; there is also a lack of Welsh based companies. Larger firms of solicitors in Wales must have a strong Welsh commercial hinterland whereby they can develop a service tailored to the needs of Wales. On the other hand, they must also be able to attract business from England.

For the Bar it is recognised that the skills and abilities of barristers practicing on Circuit have been enhanced by devolution and that it has opened up significant opportunities for the development of specialist skills. These skills represent a valuable resource for Wales, but also for the United Kingdom.

In broader terms the economic impact of the above changes is something that merits further examination. Legal services contribute 1% to the GDP of Wales, although that is spread unevenly throughout Wales. A further study, perhaps in conjunction with the WDA, should be undertaken as part of the Welsh Assembly Government’s new policy strand of expanding commercial activity in finance and law.

ii Would there be an effect on the ability to attract work from England and other parts of the

It is essential that the larger law firms retain the ability to attract work from England. The greater devolution of the administration of justice, within the existing unitary system, would enable firms to attract work from England. Furthermore, as there is no suggestion that we depart from the common law tradition or that all areas of law making are devolved to Wales, Welsh firms will continue to be a position to obtain business from England.

i) Change in its broader national context

i Should any change be viewed in the broader context of creating national institutions in Wales?

The SCLW feels that the greater devolution of the administration of justice to Wales should act as a stimulant to the development of other national institutions in Wales.

ii What change (if any) is necessary to focus the profession (and its clients) on viewing Wales as the natural place in which to create a largely self sufficient pool of legal expertise for transactional work and dispute resolution?

No views expressed.

iii Would this benefit the Welsh economy by retaining work and strengthening career opportunities in Wales?

The Welsh economy would benefit by enhancing career opportunities and by encouraging graduates of the Welsh law schools to practice within Wales.

j) The role of the law schools in Wales

i. To what extent are the law schools and the professional training courses responding to the needs of Legal Wales for bilingual entrants to the profession?

Welsh medium modules are available in Aberystwyth, Cardiff and Swansea Law Schools. There is a need for greater long term public funding of Welsh medium provision in the Law Schools. Such funding must address the needs for more legal material in Welsh, a standardised Welsh legal terminology dictionary and the recruitment of suitably qualified staff. There is much benefit to be obtained by collaboration amongst all the Law Schools in Wales and for the use of modern technology to maximise the number of bilingual lawyers entering the profession. The success or failure of Legal Wales will depend, to a large extent on the ability of the Law Schools to provide sufficient numbers of suitable entrants into the legal and related professions in Wales. This will involve raising the awareness of Legal Wales in the schools and sixth form colleges, as well as amongst the current undergraduate population.

ii What effect would any change discussed above have on the law schools within Wales?

It is essential that promoting Legal Wales is recognised as a key role of the Welsh law schools when teaching and research quality is assessed by outside agencies. It is an essential part of their mission and must be seen as such by the Funding Council and the Quality Assurance Agency. It is also essential to promote academic writing in Welsh and to build up a body of legal scholarship specifically relating to Wales.