A lack of dedicated curriculum modules on Welsh law could result in few practitioners knowing how laws of England and Wales diverge, the government has been warned. The danger was highlighted by an independent advisory committee set up under the Wales Act 2017 in its first report to the lord chancellor, published today.
The report states that Welsh legal education and training providers now offer Welsh-focused content, but 'very few providers in England and Wales have dedicated modules covering Welsh law. Therefore, there is a risk that in a continuously diverging landscape, a significant proportion of practitioners will be unaware of the divergence between laws made in England and laws made in Wales'.
The definition of homelessness was highlighted as an example where divergence affected legal aid provision. In 2015, the Housing (Wales) Act 2014 introduced a new definition, applying to anyone threatened with homelessness within 56 days; in England it was 28 days. 'This application of the definition of homelessness meant access to legal aid in this area was available to people in Wales 28 days before those in England and the internal assessment procedures, as well as that of providers of legal aid (solicitors) needed to reflect that,' the report says. The Homelessness Reduction Act 2017 revised the definition to 56 days for England.
The committee recommends that the Ministry of Justice and the Welsh Government consider working with the Law Society and Bar Council to ensure legal education providers adapt their courses.
Elsewhere, the committee says divergence has significantly affected court IT systems, which already need to operate differently. The most prominent example, the committee says, is changes to HM Courts & Tribunals Service's online portal for possession claims.
'As a result of the Renting Homes (Wales) Act 2016, there is a slightly different pathway for landlords claiming possession in Wales compared to England. Users of the online system should expect to see some different forms if they are using it for cases in Wales. The development of the system to cope with this difference is both costly and time-consuming and this will need to be considered each time legislation changes the way any of HMCTS' systems operate.'
Members of the committee include representatives of the Cabinet office, judiciary in Wales, Judicial Office, Welsh Government, Law Society, Bar Council, HMCTS and Ministry of Justice.
The ministry said it welcomed the committee's recommendations.