View from the bench | Welsh legislation is adding a new 'dimension to the legal landscape

Lawyers everywhere need to be alert to the potential impact of the legislation of Wales.

The process of political devolution in Wales is quickly gathering pace. As it does, the National Assembly Government for Wales (NAW) is churning out ever more primary and secondary legislation that practitioners will ignore at their peril if confronted with a case with a Welsh connection. That is regardless of whether their practice is based in Wales or England.

Under schedule 5 of the Government of Wales Act 2006 the Westminster parliament granted legislative competence in 20 "fields" and "matters" to the NAW. They include such important areas as agriculture, economic development, education and training, food, health and health services, highways, housing, social welfare and planning. The devolved powers were strengthened further in 2011 when schedule 7 of the Act became the operative schedule and the NAW is taking full advantage.

Judicially noticed

Section 107(4) of the Act requires that all Acts of the assembly are to be judicially noticed. That requirement places a duty upon practitioners to be aware of the legislation and to draw any legislative provisions, relevant to any given case, to the attention of the court or tribunal.

The NAW is endeavouring to publicise its legislation but, at present, there appears to be little awareness among the legal profession outside Wales that Welsh legislation can have an impact on cases managed outside Wales.

At present, Welsh legislation can be accessed via the NAW website (www.assemblywales.org) and current legislative proposals via the Welsh government site (wales.gov.uk/legislation/programme/assemblybills/?lang=en).

There is huge potential for law schools and the legal profession to produce commentaries on the legislation and its impact on the law of England and Wales generally. The Association of Judges of Wales is pressing for such initiatives to be taken and some progress is being made, though perhaps not enough, to keep pace with the legislation. You will, as a reader, gauge from personal knowledge the extent to which that statement is true by considering your own awareness and understanding of the impact of Welsh law.

The importance of monitoring Welsh legislation was highlighted by the Court '¨of Appeal in Re X and Y (Children) [2012] EWCA 1500 (Pill, Toulson and Munby LJJ). The case concerned the fact that Local Safeguarding Children's Boards in Wales and in England are governed by separate statutory regimes and supported by separate guidance. The duties placed on such boards in Wales are more extensive than those applying in England.

At paragraph [70] of the judgment Pill LJ states that "The legislative powers available to the Welsh National Assembly and the executive powers available to the Welsh Government are now such that divergences between the law of England and the law of Wales are likely to increase in number and scope. The has already occurred in family law in some aspects of which the Law Commission has acknowledged the need for separate legislation for Wales to meet Welsh aspirations expressed by the Welsh authorities. There are also significant divergences in areas of public law and some divergences in other areas of law."

Cross-border effects

The divergences of law considered by the court in Re X and Y are currently under further review by NAW as it consults in relation to its far reaching Social Services and Well-being (Wales) Bill 2013. This radical bill aims to create a new legal framework for social services in Wales. If implemented, it will amend other legislation so far as they apply in Wales, for example, section 27 of the Children Act 2004 and section 25 of the Children Act 1989.

Children are given special '¨consideration in Wales by virtue of the NAW having adopted the United Nations Convention on the Child, unlike its counterpart in Westminster.

The Human Transplantation (Wales) Bill 2013 has recently attracted nationwide media attention and, when enacted, will introduce a positive requirement to opt-out of organ donation for people living in Wales. Wills draftsmen will need to be alert to advising clients who may end up living in Wales that such is the case.

There are other important legislative proposals in the pipeline covering such diverse topics as education, the control of dogs, planning law and housing.

In relation to the latter, one commentator recently stated that "a whirlwind of new legislation is about to hit the housing sector in Wales". It includes proposals to improve the rights of tenants living in Wales' 182,000 privately rented dwellings.

No-one can afford to ignore the growing body of Welsh legislation. On 16 July the NAW published its legislative proposals for the next session comprising a new raft of measures including important legislation on domestic abuse, sustainable development and fly-tipping. The juggernaut is rolling.