Wales: a separate jurisdiction in the making?

Although we continue to be part of the same jurisdiction, the laws to be applied in Wales are not always the same as those applicable in England, and the divergence is gathering pace.

In this two-part article, I will draw attention to the practical impact of Welsh political devolution in terms of the law-making powers of the Welsh assembly government and highlight some further proposed legislation in Wales that will affect not only people living there, but also a great number of citizens living throughout the jurisdiction of the courts of England and Wales.

Warning sign

Lawyers who advise clients on any issue with a Welsh connection will ignore Welsh law at their peril.

It is permissible for the judiciary to reflect upon the impact of the constitutional changes brought about by Welsh devolution and to seek to ensure that the evolving legal system it creates continues to provide all the population, throughout the entire jurisdiction, with access to justice.

The Government of Wales Act 1998 vested upon the then National Assembly for Wales embryonic law-making powers. During the first decade of this century, those powers were greatly enhanced, first by granting wider powers upon the National Assembly to make subordinate (secondary) legislation, then, by providing an Order in Council mechanism allowing the Westminster parliament to confer enhanced legislative powers upon the Welsh National Assembly in relation to specified matters within 20 devolved fields. In addition, it was provided for a further referendum to be held in Wales to authorise the National Assembly to make law on all matters within its devolved fields of competence without further recourse to Westminster.

That further referendum was held on 3 March 2011, when 63 per cent of those voting supported the question: “Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?”

As a result, the Welsh assembly government assumed, pursuant to part 4 of the Government of Wales Act 2006 (the 2006 Act), that the ability to make laws, known as Acts of the Assembly, and the current era of Welsh devolution began.

Of the 20 subject areas (in schedule 5 of the 2006 Act), very significant primary and secondary legislation has already either been passed, or is part of the proposed legislative programme, in the fields of education and training, health and health services, housing and social welfare.

Social welfare

Some Welsh legislation in relation to social welfare is beginning to add another dimension to family law in Wales and, in particular, to the law relating to children being looked after by Welsh local authorities, and has occasionally led to conflict of laws issues arising between English and Welsh local authorities as to whether the Westminster or Cardiff Bay provisions are to take precedence.

Also, the Welsh assembly government has adopted the United Nations Convention on the Child (unlike the Westminster parliament), which carries with it a special responsibility to ensure that all legislation proposed and passed in Wales is compliant with the Convention.

Last year, the Welsh assembly government passed the Social Services and Well-being (Wales) Act 2014. The Act reforms the structure of social services in Wales for both adults and children and, when fully introduced, will represent a significant departure from the law in force in England.

Of no less importance are the plans of the Welsh assembly government to reform housing law in Wales. It has accepted proposals put forward in 2006 by the Law Commission on housing reform. The proposals involve a radical restructuring of housing law in Wales, sweeping away the dozens of different types of statutory and common law tenancy and licences, and replacing them with two new ‘occupational contracts’ and greatly simplifying landlord and tenant law in Wales.

Bearing in mind the number of second homes owned in Wales by people living elsewhere, a working knowledge of these changes will be necessary throughout the jurisdiction. 

The second part of this article, due to publish in mid-February, will consider these changes in more detail. SJ

District Judge Harold Godwin is the immediate past president of the Association of Her Majesty's District Judges