The scale of the growing divergence between English and Welsh law is starkly illustrated in a document published by the Law Society today. A practice note on Differences in English and Welsh law runs to 38 pages - a statistic likely to be used by those lobbying for a formal separation of jurisdictions. 

According to the note, Wales-specific legislation applies across whole areas of devolved policy-making, including housing, health and education and planning. ‘New case law is also emerging,’ it notes. ‘If you are advising clients in Wales, it is no longer safe to assume that laws are uniform across both nations.’ 

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Failing to identify differences ‘risks providing incomplete or incorrect guidance. It could also lead to disciplinary action: the Code of Conduct requires solicitors to work only within their area of specialism or competence. 

  • In education, Wales has distinct regulatory bodies and the structure of the school system differs significantly. ‘Do not assume that the Children and Families Act 2014 concepts, terminology or procedures apply in Wales.’ 
  • Health and social care systems ‘diverge substantially from, and are independent of, the English NHS and social care systems’.  Cross-border cases pose particular perils. 
  • In housing and property, while primary legislation such as the Law of Property Act 1925 and the Land Registration Act 2002 apply, ‘notable differences … have emerged because of the Senedd’s devolved authority over areas such as housing, planning and certain taxes’. Divergence in land tax involves separate tax regimes with distinct calculation methods, filing requirements and compliance processes. For example, in Wales the filing and payment window for land transaction tax is 30 days from the effective transaction date; England’s stamp duty land tax has a window of 14 days.  ‘Where a single piece of land straddles the England–Wales border, the transaction must be split for tax purposes and the purchase price apportioned accordingly.’
  • Housing law has diverged over the issue of no-fault evictions. While these have been abolished in England, Wales still permits no-fault evictions through a standard six-month notice.
  • Planning law is another 'significant area of divergence'.

Overall, the note advises solicitors to ’identify whether the person, service, provider and decision-maker are in Wales, England, or both’ and to ’avoid assuming English precedents, procedures or policy tests will apply unchanged in Wales’.