Wales goes to the polls on 3 March to vote on whether the National Assembly’s law-making powers in the 20 devolved areas should be extended. It has already started building a body of law with a distinctive Welsh flavour, despite the tortuous process put in place in 2006 that requires the assembly first to seek approval from Westminster.
‘A yes vote will end the unseemly bickering between Cardiff and London,’ says Emyr Lewis, a public law and commercial partner with Morgan Cole, which has offices in Cardiff and Swansea. ‘Accountability to the people of Wales will increase,’ he adds, ‘but we should never forget that Westminster is not giving anything up here. Westminster will still have concurrent powers to legislate on any Welsh matters and further protocols will be needed to deal with these issues.’
Among the differences with England is the Welsh Language Measure (Act), which requires public bodies and some private companies to provide services in Welsh. Then there are free prescriptions and hospital parking, and the absence of school league tables. Welsh university students will not have to pay the increase in tuition fees. And greater emphasis is placed on sustainable development and renewable energy.
In the pipeline are the UK’s first NHS redress scheme, which will cover clinical negligence claims under £40,000, and the first plastic bag levy. Plans for a ‘soft opt-out’ scheme for organ donation have sparked the most recent row with Westminster over what powers are within the assembly’s remit.
Turnout, though, is not expected to be huge. While the referendum has cross-party support and opinion polls predict a ‘yes’ vote, others say the result is too close to call.
For practitioners, the plus side will be greater clarity and better defined lines of responsibility. Closer links with Cardiff Bay will mean greater opportunities to be involved in consultations over legislation. And, as the body of Welsh law increases, so will marketing opportunities for law firms in offering specialist advice to clients and to legal practices outside Wales on the divergence from English legislation.
However, there are also concerns about the capability of assembly bodies to take on more legislative work, particularly as everything has to be drafted bilingually. Another concern is whether there will be sufficient scrutiny of proposed legislation, given there are just 60 AMs (assembly members) in a unicameral body with no revising chamber, such as the House of Lords. And there is a danger that expectations will be falsely raised in terms of new rights and responsibilities, given that crucial funding decisions, such as over legal aid, remain with Westminster.
Peter Davies, chair of Cardiff Law Society, says the current modus operandi requires the assembly to jump through hoops while ‘still hanging onto mum’s coat tails’. He adds: ‘Either the people of Wales are to be trusted with their own properly devolved assembly or they are not. However, even if it is a yes vote, we are still a million miles away from the arrangements in Scotland. If a distinct body of Welsh law builds up, lawyers here will need to be on top of it but it doesn’t mean lawyers in England shouldn’t be able to practise here.’
Lewis agrees: ‘We are still growing up in understanding how civil society should react to legislation, because we have been so far away from the legislative process. Lawyers will be able to do a lot to help people engage with the process, not just as part of their job but also on a pro-bono basis.’
He says that no lawyer can practise without some understanding of constitutional and public law: ‘There is growing recognition that Welsh public law is something the profession can and wants to do. In the past, clients would have turned to London, but the tendency now is to stay in Wales, while the bar here has also really upped its game in this field.’
The important thing from a lawyer’s perspective, says Huw Williams, a member of the Law Society’s Wales committee, is that the referendum is not about refighting the battle for devolved government: ‘It is about whether we should have a system of devolved government which follows a recognised constitutional model rather than the extremely complex hybrid we have lived with for the past four years.’
Williams, head of the public sector practice at Cardiff firm Geldards, says: ‘The jagged edges between the assembly and Westminster won’t disappear. Everyone is going to have to be grown up about it. My hobby horse is that the assembly needs the scope to consolidate legislation into a series of major Welsh acts; it’s the devil’s own job working out the law in either jurisdiction.’
Greater clarityDivergent legislation certainly creates as many problems as it solves, says Carolyn Kirby, a member of the Wales committee and president of the Mental Health Review Tribunal for Wales. ‘Greater clarity would be helpful. Even within a single piece of legislation you may have implementation in England but not in Wales or vice-versa on a clause-by-clause basis,’ she explains. ‘However, it is not enough simply to devolve more power to the assembly unless there are the resources to create the infrastructure to do it well.’
Kirby says the referendum is ‘not the chatter in the pubs’. She cautions: ‘At the moment, the legal profession here is worrying more about professional indemnity insurance, severe problems with legal aid and conveyancing, and the introduction of alternative business structures.’
The temptation is for the referendum to become a vote on the effectiveness of the Welsh Assembly government rather than a discussion about where Welsh laws should be made, notes Aled Roberts, a former partner with north wales practice Geoffrey Morris & Ashton Solicitors.
Leader of Wrexham County Borough Council, Roberts is standing in the May assembly elections as Lib Dem candidate for north Wales. He says: ‘The concerns I have heard most regularly are about the capacity of AMs to carry out effective scrutiny and the capacity of the drafting machinery in Cardiff.’
When it comes to the benefits a ‘yes’ vote would have for law firms, Elin Pinnell, head of employment with Cardiff commercial practice Capital Law, argues: ‘The advantages of having an establishment with law-making powers that can respond to issues specific to Wales which is just 200 yards from our offices and whose members are readily accessible speak for themselves.’
Davies, who set up his own niche litigation firm in 1998, recently merged with three small firms to become Glamorgan Law and add depth in advance of ABSs. ‘While a ‘yes’ vote won’t impact on business in the short term, an area which might grow for us is in advising on public law,’ he predicts.
New powersFor public sector lawyers, the impact will depend on how the assembly uses the new powers, says David Daycock, monitoring officer for Mid and West Wales Fire authority and local government consultant with Geldards. ‘It could result in an increased need for lawyers in the assembly if it embarks upon a bold legislative programme,’ he says. ‘It could also result in traditional local government areas being restructured, or taken over by the assembly, in which case it may diminish the need for lawyers in councils.’
There are risks as well as benefits for lawyers if the assembly steps up its legislative output. Based in Bangor, Julie Burton has her own niche three fee-earner legal aid practice, providing advice across north Wales in mental health and community care.
‘The assembly is quite definitely seeking to stamp a distinctive Welsh flavour on social care. Further devolution will simply speed up and simplify the process,’ Burton says. ‘However, I am anxious about the practical difficulties of keeping up to date, both for Welsh solicitors and English solicitors who are going to be much less up to speed with the changes.’
Practitioners complain about accessibility of legislative information on the assembly websites, turning instead to the Law Society’s Welsh office and the Wales Governance Centre, part of Cardiff University Law School.
There is a ‘knowledge gap’, insists Kirby: ‘The main publishers of legal texts take the view that there isn’t sufficient critical mass of purchasers to make it worth producing Welsh ones.’
Clinical negligence partner Rachael Vasmer is based in the Wrexham office of Walker Smith Way, a large regional general practice which covers north Wales and Cheshire. ‘There is a great deal of ignorance about divergence in legislation,’ she notes, ‘and the greater the divergence the more crucial it is there is good accessible information. We will make sure all fee-earners are very clearly aware of any differences – but it is more hit and miss outside Wales.’
For Robin ap Cynan, a family mediator and chair of the Wales committee, the impact of the assembly’s output won’t be taken on board until the first high-profile case where somebody is sued for assuming English law applies when it should be assembly law. ‘More pointedly, there is likely to be waiting in the wings a negligence action against a lawyer who has researched assembly law only in English and, if there is a slight divergence in interpretation in the Welsh version and this has an impact on how the law applies, this could be a problem.’
So, ap Cynan says, ‘there is a unique opportunity for bilingual lawyers familiar with Welsh law to offer their law firm’s services very creatively as the legislation that comes out of the assembly accelerates.’
This raises the question of education and training. Professor Iwan Davies, pro-vice chancellor of Swansea University, believes there is an imperative for Welsh law schools to coordinate their activity, so that students and practitioners can be properly grounded in Welsh public law: ‘However, you could argue the challenge is as much for the English law schools to ensure their students have the capacity to practise here.’
Wales, with pockets of high deprivation, has been hit badly by legal aid cuts. However, the referendum won’t affect access to justice because the administration of justice and legal aid are not devolved areas.
Burton says assembly reforms will have to be properly funded: ‘If Cardiff brings in distinctly Welsh rights and responsibilities, clearly the ability to enforce those rights has got to be there too. The concern is that, as the areas covered by legal aid shrink, those rights may turn out to be illusory.’
Dylan Lloyd Jones is one of four partners and six fee-earners at R Gordon Roberts Laurie & Co, which has offices in Anglesey and Gwynedd. He specialises in public law children care and adoption cases; 80% of clients are Welsh-speaking. ‘Westminster should consider devolving legal aid to Wales,’ he argues. ‘If you take it back to its logical source, it is part of the welfare state and arguably all aspects should be devolved to the assembly.’
When it comes to benefits for clients, Pinnell says: ‘Clients need to know that their views are being listened to and that action can be taken to resolve issues which directly affect their working lives. Devolved powers were, in most people’s minds, assumed to be exactly that. However, our clients have been frustrated by the process the assembly has had to undertake to respond to these issues, which has undermined its authority and standing over the past decade.’
‘Clients are concerned not so much about policy as about its delivery,’ says Alan Meredith, senior partner of Eversheds’ Cardiff office. ‘Will it be more convoluted to do what they want to do? However, the opportunities to have a say on legislation will be much greater.’
For Vasmer, the NHS redress scheme is the one ray of hope for clients in a bleak picture of legal aid cuts. ‘The scheme has no mandatory duty of candour but there is no reason once the assembly has its own law-making framework that we can’t argue for areas like that to be strengthened.’
Separate jurisdictionFor many practitioners, the idea that a ‘yes’ vote is a step towards Wales becoming a separate jurisdiction prompts the comment ‘not in my lifetime’, while others stress that this is a separate debate. ‘A lot of the features that are essential tools for a legislature to mould its own legal jurisdiction are simply not there,’ says Williams, ‘and the powers that would be needed to create that are some way off.’
Lewis agrees. ‘You don’t start to touch that issue until you talk about the administration of justice and that isn’t on the cards as far as I can see. My personal opinion is that, at some stage, that issue has to be faced up to as I wonder if the Welsh devolutionary model is sustainable.’
For Lloyd Jones, ‘before you can start thinking about a separate jurisdiction, you have to remember that our laws going back to 1536 are so inextricably linked with those of England’.
However that doesn’t mean Wales isn’t developing its own legal personality. Practitioners praise the support of the judiciary in enabling Welsh matters to be dealt with in Wales, in Welsh if preferred, and as locally as possible.
Lloyd Jones is a member of the standing committee of Legal Wales, a concept which started with devolution in 1998. ‘Wales,’ he notes, ‘now has its own circuit with its own "Trinity" of mercantile, civil and chancery judges, two presiders who cover the whole of Wales plus a family division liaison judge. We have to be careful that the referendum isn’t seen as a linguistic, nationalist issue. It is not. It is an evolutionary process and the referendum is the next natural stage in the process.’
For professor Davies, Wales’s border with England is just ‘too porous’ for it to become a separate jurisdiction. ‘However, if you have laws initiated in Wales,’ Davies notes, ‘it brings the role of judges into focus. The lord chief justice of England and Wales advises the government on the impact of laws on the judicial system. We could have a situation where the presiding judge for Wales finds himself more in that role to reflect the distinctive nature of Welsh law. Will the lord chief devolve part of his role to the presiding judge? This could have the potential for a Welsh judiciary to emerge.’
Many practitioners are certainly looking forward to a fresh momentum if the ‘yes’ vote wins. Ap Cynan believes the result is too close to call, but adds: ‘Politicians would regard a "no" vote as an absolute slap in the face. I think the legal profession would also be disappointed because I suspect it is proud that Wales is developing its own legal personality.’ n
Grania Langdon-Down is a freelance journalist
There are 3,781 solicitors with practising certificates in Wales, of whom 82% work in private practice. Just under half of those work in firms with two to four partners, which make up half of the 490 private practice head offices in Wales; a quarter in practices with 5-10 partners; while 14% work in the three largest practices, which have more than 26 partners.
Central and local government account for 13% of solicitors in Wales. While most trainees (88%) work in private practice, Wales has the highest proportion of trainees employed in local and central government.According to Law Society research, older solicitors are over-represented, with proportionally more solicitors with 20-49 years of experience in Wales than in the profession in general. Under a third (29%) are aged between 26 and 36, compared with 35% in the profession as a whole. The top three areas of work are business affairs (14%), wills and probate (8%) and litigation (general) (7%). In the profession generally, business affairs dominates at 21%, wills and probate accounts for 7% and litigation 6%.
The referendum question on 3 March will be: ‘Do you want the assembly now to be able to make laws on matters in the 20 subject areas it has powers for?’
The National Assembly for Wales has had the power since 2006 to make laws, called ‘measures’, on some matters within already devolved areas – including agriculture, education, the environment, health, housing and local government – but not others.
However, it first has to ask the UK parliament for its agreement via legislative competence orders under part 3 of the Government of Wales Act 2006, which can take months or even years.
The assembly stresses the referendum is about the transfer of powers on all matters in the 20 areas rather than the format of any future legislation.
If there is a ‘yes’ vote, part 4 and schedule 7 of the act will come into force, allowing the assembly to pass primary legislation, although it will remain the case that the assembly cannot make laws in non-devolved areas such as defence, tax, criminal justice or welfare benefits.
The ‘yes’ campaign argues it is not about bigger government but about better government, with politicians no longer able to hide behind the way laws are made as an excuse for not delivering for the people of Wales. The ‘no’ campaign counters that it will mean more expensive and cumbersome government and constitutes the ‘slippery slope’ to separation from the UK.
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