23 06 03

RICHARD COMMISSION ON THE ASSEMBLY’S
POWERS AND ELECTORAL ARRANGEMENTS

MEMORANDUM BY THE LAW SOCIETY OF ENGLAND AND WALES

Introduction

1.   The Law Society of England and Wales is the regulatory professional representation body for solicitors in England and Wales. Appendix 1 is a profile of the Society.

2.   The Society was one of the bodies, along with the Wales and Chester Circuit and the Wales Public Law and Human Rights Association, that facilitated the seminar for the Commission, by members of the judiciary, the legal profession and teachers of law, held on 7 February 2003. The solicitors invited to take part in that seminar contributed their views in a personal capacity. This submission is made by the Society itself on behalf of its membership as a whole.

3.   Accordingly, this paper is focussed on the impact of the National Assembly and changes to the administration of justice inspired by the establishment of the Assembly, on the practice of the law in Wales and elsewhere in the United Kingdom. This paper considers these impacts under the headings of:

a.   Legislation.
b.   Legal Institutions

Legislation

4.   There have already been a number of submissions to the Commission on the operation of the legislative process as it affects Wales after the passage into law of the Government of Wales Act 1998¹. Most recently, the process whereby the National Assembly acquires its primary legislative powers has been the subject of the Welsh Affairs Committee’s report "The Primary Legislative Process as it Affects Wales².

5.   In assessing the impact on legal practice of legislation with a specifically Welsh character it is necessary to note the general characteristics of that legislation. The 18 fields of legislation that defined the subject matter of the Transfer of Functions Order were of a public character. They related to legislation that either controlled the organisation and delivery of public services, such as education, health, housing or roads, or regulatory codes such as planning and environmental protection. The subject matter of the criminal law and private civil law (covering areas such as land law, contract and obligations) remain outside the fields of devolved activity. Post devolution primary legislation has respected the subject matter of the original list of fields in conferring new powers or amending existing powers.

6.   It follows from this scheme of legislation that the solicitors who have to deal with the devolution settlement on a regular basis are those in:

1. Public bodies, including the Office of the Counsel General, the government legal service generally, local government and assembly sponsored public bodies;
2. Private practitioners who advise private clients or the public sector on education, health, planning and environment, agricultural and local government law.

7.   Such private practitioners tend to be specialists in their fields and have a working knowledge of the devolution settlement and how to find out if the law is different in Wales and, having done so, to find the law applicable in Wales. However, practitioners across wide areas of legal practice both within and beyond the boundaries of Wales may from time to time encounter the legislative differences between the laws in Wales and England. For instance there was a period in 2000 –2001, when it was important for conveyancers to know that regulations introducing the contaminated land provisions of the Environment Act 1997 had come into force in England but not in Wales. Similarly, a solicitor in England instructed in a medical negligence case arising in Wales might well now need a working understanding of how the NHS in Wales is organised in order to build his client’s case.

8.   Every practitioner expects to know where to find the law and to apply it to the client’s particular problem or requirement. The Society also recognises that the complexity of modern society and of the subject matter of much current legislation means that legislative interpretation is a time consuming activity. However, the Society considers that, within reason, it is entitled to look to the legislative bodies to ensure that in a devolved system such as that applying to Wales the sources of legal authority can be clearly tracked from the primary legislation at Westminster (whether pre or post devolution) through to the pre 1998 secondary legislation applicable in Wales or made subsequently by the National Assembly. To borrow the Counsel General’s phraseology in his evidence to the Commission: to know and understand the law in Wales should not be elusive.

9.   The already difficult area of establishing if a particular provision in primary legislation is in force has also become more complicated by devolution of commencement dates to the National Assembly.

10.   The current position is summed up succinctly in the reply of Cedric Longville, Legal Adviser to the Wales Office to the Welsh Affairs Committee, during the evidence by the Secretary of State and the First Minister, when asked about the importance of academic lawyers and practitioners being able to determine what the Assembly’s powers are:

I think we need to distinguish two things here – the certainty of the powers and the process of coming to the conclusion as to what they are, I believe that so far as we collectively, the lawyers in Whitehall and in the Assembly, have sought to achieve certainty of powers and have been fairly successful, quite successful, very successful, but I agree that the process of coming to the conclusion as to what the Assembly’s power is in a particular context can be quite difficult, particularly for practitioners who are unfamiliar with the process of devolution, and there is scope for us to work on that…………³

11.   The Society acknowledges that there have been several developments in the legislative process over the term of the first National Assembly that have improved the integration between primary legislation and Assembly legislation:

1. The publication of explanatory notes to Bills and the identification of Wales provisions or, indeed, that a Bill does not make any special provision for the National Assembly. There remains work to do to ensure that statutory instruments also have their territorial extent clearly indicated in their title.
2. The publication of Wales only bills in draft to enable pre legislative scrutiny by the National Assembly and its relevant subject committees.
3. A greater awareness of the need for there to be consistency in the way that the National Assembly is given its powers in primary legislation.

12.   Nevertheless, it remains the case that there is no overall principle to govern what is and what is not a devolved matter. Indeed, in the absence of primary legislative powers for the National Assembly the statute book as it relates to Wales will continue to grow haphazardly as the National Assembly secures a legislative "slot" at Westminster for a draft Wales only Bill (e.g. the draft Audit (Wales) Bill recently published), or as an opportunity arises to make provision for Wales in a same subject Bill also making provision for England. The best example of the latter process was the way that the opportunity to make reforms to the planning system in Wales was sprung on the National Assembly Government in the summer of 2001.

13.   The decision on whether the present devolution settlement should be amended to confer primary legislative powers raises political issues on which the views of members of the society will differ and thus go beyond the scope of this submission. The Society confines itself to endorsing the evidence of the Permanent Secretary of the National Assembly and the Counsel General that after the experience of establishing and developing in practice the institutions of devolved government the powers of primary legislation would represent a manageable progression, if that was the political course determined upon.

14.   To that comment the Society would add its endorsement to the need for Parliament and the National Assembly to develop machinery for the joint scrutiny of primary legislation, particularly where the legislation proposes policies developed by the Assembly Government and the National Assembly’s subject committees. This has been recognised by the Welsh Affairs Select Committee in the recommendations contained in its report⁴. The need for this is graphically illustrated in the report of the ill informed proceedings of the House of Commons Standing Committee into the Wales clauses of the Planning and Compensation Bill.

15.   As the body charged with the representation of solicitors, the Society submits that it is of paramount importance that the law applying to the National Assembly is published promptly and in a form that presents those laws as clearly as the terms of the devolution settlement allow.

16.   The evidence of the Counsel General to the Commission recognised that the key problem to those advising on legislation affecting Wales is the "ascertainability problem" which may currently be manageable, but which will inexorably become worse by the accretion of powers from Westminster by the process already outlined⁵. Anecdotal evidence gathered by the Society from practitioners and its specialist committees supports the Counsel General’s analysis.

17.   The Society congratulates Cardiff Law School on its initiative in securing funding for its Wales Legislation On-Line service. The service has the merit of being the only currently available overview of the primary legislation that confers powers on the National Assembly and which can be searched in a way that links the relevant Act of Parliament to Assembly Orders in force. However, the site still requires considerable development before it can be regarded as comprehensive and in may ways its current state illustrates the problems of tracking what the Society has previously described as "a rapidly expanding and incoherent mass of statutory powers with no overarching logic"⁶. In particular it currently does not have links to the text of the legislation; it does not list pre 1998 statutory instruments still in force in Wales and made under powers now transferred to the National Assembly; and it does not list the third tier of material, namely the quasi-legislative texts comprising circulars and guidance.

18.   The Society also understands that the Office of the Counsel General is currently undertaking a scoping exercise on a project to enhance the National Assembly’s own electronically published legislative texts. This is to be welcomed and is to be hoped that savings of time and effort can be achieved in learning from Cardiff Law School’s pioneering work to date.

19.   The other solution to the "ascertainability problem" that has been suggested is consolidation. The Welsh Affairs Committee report⁷ recommends a consolidation of the National Assembly’s powers by 2008. Neither First Parliamentary Counsel in his evidence to the Welsh Affairs Committee⁸, nor the Counsel General in his evidence to the Commission⁹, favoured consolidation as the way forward for a variety of reasons. The Society believes that practitioners’ experiences support the scepticism that has been expressed. Where there is a body of law that can be expected to remain stable for some time then a consolidating statute is a valuable aid to clarity. A good example is the Highways Act 1980. On the other hand the Planning Acts of 1990 were being amended within less than a year, while the Education Act 1996, which finally consolidated education legislation from 1944 onwards has been nothing more than the platform for further vigorous legislative activity in this field.

20.   The Society therefore strongly supports initiatives that will present the legislation in a way that enables the practitioner to work down through the tiers of legislation and quasi legislation to the result that is being sought. It is also important to emphasise that this task is one that needs to be undertaken regardless of whether the devolution settlement remains as it is, or whether the Assembly acquires primary legislative powers. However, the principal difference would be that if primary powers were conferred, the National Assembly’s inheritance of Westminster primary legislation would be fixed and more easily made available in the form of a digest for practitioners and the National Assembly itself, as it legislated over time in the fields of devolved primary legislative powers could gradually consolidate the Westminster legislation into new National Assembly legislation.

21.   It is the view of the Society, therefore, that there is a strong case on technical grounds for arguing that the "ascertainability problem" is best resolved by the National Assembly being given primary legislative powers within a range of areas encompassing, broadly, the delivery of the public services in Wales. The Society has noted in particular the development of the devolution settlement in Scotland which has seen Westminster continue to legislate for Scotland, at the request of the Scottish Parliament, in situations where international obligations or the acknowledgement of the need for uniformity across the United Kingdom mean that separate Scottish legislation would be in identical terms. As Professor Hazel has noted¹⁰, this has resulted in the Scottish Parliament having the legislative time to pass the sort of relatively short but important Bills which were formerly squeezed out in Westminster by the pressures on the legislative programme to meet the needs of English departments of state and which continue to be squeezed out in the case of Wales.

22.   A National Assembly with primary legislative powers would be in a position to reshape the existing statute book in the devolved areas and gradually implement a programme of consolidation bills. The uncontrolled flow of primary powers scattered around England and Wales Acts would be staunched. Furthermore, the Scottish experience suggests that Westminster should continue to legislate for Wales where it is clearly logical to do so and allow the National Assembly to concentrate on measures that are specific to Welsh needs and circumstances. To the practising lawyer it would then simply be a matter of checking if the National Assembly had legislated on a topic to establish if the position in Wales differed from that in England.

23.   If there remain issues about whether or not a National Assembly with primary powers should enjoy a system of devolution with only specific matters reserved to Westminster like Scotland’s, then a possible approach might be to constitute the National Assembly as a parallel legislature to Westminster over the devolved fields. Within this concept it is possible to envisage procedures where Westminster would have powers by resolution to require a Bill introduced into the National Assembly to be presented at Westminster by the Secretary of State. Bills "called up" in this way would then either find a place in the Westminster legislative programme with UK Government support or expire at the end of a session due to a failure to make progress, in the manner of private members bills. In practice it would be likely that conventions enshrined in suitably updated Memoranda of Understanding and Devolution Guidance notes would generally avoid resort to such explicit assertions of the ultimate sovereignty of Westminster and achieve in practice the sort of distribution of legislative effort that is beginning to stand Scotland in good stead.

Legal Institutions

24.   The Commission has already received evidence of the way in which the administration of justice in Wales has been reconfigured to take account of the devolution settlement. The Commission’s attention has already been drawn to the establishment of the Mercantile and Administrative Courts for Wales and Chester and the institution of regular sittings of the Court of Appeal in Wales. These innovations have received the full support of the Society, although it also recognises that there is more that needs to be done (by the Society as well as others) to emphasise the advantages that Wales enjoys as a result of these initiatives and to encourage their utilisation by practitioners.

25.   The Society recognises that the establishment of the Commission has stimulated debate as to whether further reconfiguration of the courts system, the police and the emergency services to reflect the needs of Wales is a logical next step in the progress of devolution. There are already signs that the National Assembly’s policy agendas in the fields of health, community safety and sustainability are leading it to take policy positions on these issues and support them from the Assembly budget. Examples are the National Assembly’s contribution to the funding of initiatives to combat drugs related crime in Wales and its support and funding of fire safety initiatives. The newly created portfolio for Social Justice in the incoming Assembly Government is also indicative of this.

26.   The question of whether the Courts Service in Wales should be reorganised is now an issue of debate within the legal profession. The debate is in its early stages and there is a need for the issues and the options to be considered in detail over time. These include:

1. Whether Wales should become a separate jurisdiction like Northern Ireland or the Canadian provincial jurisdictions, or have its own divisions of the High Court and Court of Appeal and whether there is sufficient distinct subject matter and business for either of these options.
2. A role for the National Assembly in the administration of the police and in determining policing priorities in Wales.
3. A role in determining the number and location of courts in Wales.

27.   In the Society’s view these are issues that deserve to be enquired into in their own right and the Commission should confirm that these are, in principle, issues on which the National Assembly is entitled to take a view and to play an active role in the determination of future policy. This will give rise to a requirement for the Assembly to be in a position to form a Legal Affairs Committee to exercise its function of considering matters affecting Wales in this context. The Society submits that in its deliberations on the number of Assembly Members the Commission should recognise the desirability of such a Committee and of sufficient members to enable the Committee to operate effectively.

28.   In order to further demonstrate the need for such a Committee, the following examples of current issues can be given:

1. Court provision across Wales for all levels of courts lacks any planning or rational approach to the allocation of resources, while at the same time recognising the needs of the communities they serve. The closure of Magistrates and County Courts in rural Wales pose particularly serious problems in a country ill served by cheap, reliable and convenient public transport. It is sufficient for the purposes of this submission to cite the example of the County of Ceredigion. Although the fourth largest local authority by area in Wales it is served by only two magistrates courts, at Cardigan and at Aberystwyth. A journey by public transport from outlying areas of the petty sessional division is a round trip of eight hours by public transport. As a result of the closure policy an important rural town such as Lampeter can still boast its own University yet have no judicial provision. Decisions such as this demonstrate a clear conflict between a policy emanating from the former Lord Chancellor’s Department which favours the rationalisation and centralisation of Magistrates Courts across England and Wales¹¹ and the National Assembly’s agenda of social inclusion, linked to its statutory duties to have regard to equality and sustainability.
2. The need to extend the principle that no court or tribunal, including the Solicitors Disciplinary Tribunal should routinely hear cases from Wales in England.
3. The need for a forum to contribute a Welsh perspective on legal reform. A recent example is the inquiry by the Joint Parliamentary Select Committee on Human Rights into the case for a Human Rights Commission. A call for evidence elicited written responses from the Assembly Government, Welsh Women’s Aid and the Wales Public Law and Human Rights Association. The Scottish Executive on the other hand presented a policy endorsed after debate in the Scottish Parliament.¹²
4. The difficulties of practitioners in sparsely populated parts of Wales in securing specialist recognition from the Legal Services Commission due to low volumes of specialist work. This increases the difficulty of accessing publicly funded legal services in such communities and there is a need for further development of the Wales Specialist Support Service. There is also a need to recognise the holistic nature of the service provided by the legal community of rural Wales. Its fragility necessitates initiatives such as alternative means of delivery. Court closures have a direct impact upon criminal practitioners but also contribute to the increasing pressures on publicly funded legal services and the current difficulties of recruitment and retention throughout Wales.
5. The growing recognition among the senior judiciary that the answers to specifically Welsh issues affecting the administration of justice should come from within Wales. This is exemplified by the approach of the Auld Review to the debate on Welsh speaking juries:
   
   "As a non Welshman, I approach this debate with timidity. My view, for what it is worth, is that                       the proposal of a power to order bilingual juries in particular cases is worthy of further consideration – but not by me. It should be developed and examined, with appropriate consultation, in Wales."¹³

29.   Such statements point to the potential of the practising professions in Wales to be a significant part of the policy development process, particularly when one is talking about new law or legal frameworks. The Law Society frequently gives its view on legislative proposals– see for example the recent consultation on a draft Mental Health Bill. Devolution has provided a stimulus for the legal profession in Wales in this regard. One example is the establishment of new professional associations with a Welsh focus: the Wales Public Law and Human Rights Association, the Welsh Personal Injury Lawyers Association and the Wales Commercial Lawyers Association. All were established in 1999 – 2000. The Wales Law Journal, established in 2001, has as part of its mission the dissemination of information and comment of particular relevance to legal practitioners in Wales. The Centre for Welsh Legal Affairs in Aberystwyth and the Welsh Legal History Society are further academic developments linked to devolution.

30.   These specialist associations can also provide valuable input – the Wales Public Law and Human Rights Association is beginning to do this, and has submitted responses to recent consultations on coroners and on a human rights commission, as well as contributing to the seminar for the Commission on 7 February 2003. As already mentioned, the Law Society itself gave evidence to the National Assembly Procedure Review and is represented on the Wales Planning Forum which will be advising on the implementation of the Assembly Government’s policy "Planning for Wales".

31.   The Society has also participated in a Liaison Committee with the Office of the Counsel General since 1999. Another development has been the establishment of a forum for all the elements that constitute "Legal Wales" to meet and formulate views on legal issues affecting Wales in the form of the Standing Committee on Legal Wales. The Committee will meet four times a year. The constitution and the bodies represented are set out at Appendix 2.

32.   The Society itself is also reorganising its representation of solicitors in Wales to reflect the devolution settlement. The structure of the new Wales Committee (replacing the old Welsh Affairs Working Party) will be modelled on the Society’s new EU committee.

33.   What is being recognised is that the Society must be ready to deal with Law Reform issues in an appropriate way. So, each member of the EU and Wales Committees will have an area of specialist interest (e.g. Family Law, Criminal Law, Planning and Environmental Law) and be linked with a member of the relevant London-based Law Society Committee that has charge of these areas.

34.   A protocol has been devised to ensure that if any issues arise of relevance to Wales the two linked Committee members on the Wales Committee and the relevant specialist committee will liase with each other with the assistance of the Society’s Committee Secretariat to determine at what level of subsidiarity the matter is best dealt with- this will effectively allow a choice to be made between EU Committee, London-based Committee, or the Wales Committee. The protocol also caters for the default position specifying that the legislative or law reform issue will be dealt with away from London (at EU Committee or Wales Committee dependent upon where the matter started) unless the London Committee decides positively that it wishes to call the matter in as being so important to practitioners throughout England and Wales that it is in London that the matter should best be dealt with, and further, that the London Committee has sufficient resources to deal with the matter.

35.   Consequently the professions have an interest in a legislative process that is as open and transparent as possible, where plans are revealed at a formative stage and where real opportunity exists for them to give views and offer suggestions that contribute to the development of policy. In the three parliamentary sessions since devolution various different models of a process for new primary legislation for Wales can be discerned, each involving more or less opportunity for input from or some degree of control by the National Assembly or the Welsh Assembly Government. The process of the draft NHS (Wales) Bill may provide the best example yet in terms of opportunity for democratic engagement in Wales.

36.   The other vital element to the development of legal policy and institutions is the role of the Law Schools in Wales The Society cannot overestimate their importance to continued development of the devolution settlement. Cardiff Law School has the highest ratings for both its research capability and for its teaching of the Law Society’s Legal Practice Course and reference has already been made to the pioneering work of Wales Law on Line.

37.   The Society would particularly highlight the resources the Universities offer through their law and language schools to develop the standard legal terms and phrases that necessarily underpin the further development of bilingual drafting and legal procedure and the initiatives being pioneered at Cardiff and Swansea in the teaching of law and professional legal skills in Welsh.

38.   Also important if the national and international standing of some of those Schools which ensure that developments specific to Wales are not in danger of being marginalized from the mainstream of developments in legal education.

Conclusion

39.   The Law Society shares the concerns of many observers that the present devolution settlement in Wales is not a stable long-term structure. At the same time the Society recognises the very considerable achievements of the first National Assembly in transforming a small territorial department of state into an effective democratic assembly and administration. The Society’s submissions are directed towards achieving long-term stability through the recognition of the inevitability of a deepening of the National Assembly’s role through the granting of primary legislation powers, and a broadening of the role through a recognised place for the Assembly in legal affairs. If this can be achieved the result will be a stable settlement with laws in Wales that are as easily ascertainable as possibly by legal practitioners and their clients and institutions that enable distinctive Welsh needs in the administration of justice to be promoted.