Wales Committee Report

REPORT OF THE WALES COMMITTEE TO THE COUNCIL OF THE LAW SOCIETY OF ENGLAND AND WALES

Introduction

The Law Society’s Wales committee was constituted in July 2004 to succeed the old Welsh Affairs Working Party.  The committee operates under the aegis of the Legal Affairs and Policy Board.  It meets four times every year in the Law Society’s Wales Office at Capital Tower.   The committee works closely with Lowri Morgan, the manager of the Wales Office, Kay Powell, the office’s policy officer and Rhys Jones the development executive, who attend the committee meetings. 

The committee invites members of LAPB to attend its meetings.  In 2013 Nwabueze Nwokolo and Malcom Fowler attended meetings.  The committee also invites staff from Chancery Lane to attend.  Since October 2013 John O’Brien and Patricia Greer have attended meetings, Mark Paulson, Mark Stobbs and Richard Messingham have joined us for videoconferences and Ross Hutchison and Nina Fletcher have joined for teleconferences.  All council members who wish to are entitled to attend and all of you are cordially invited to attend the next meeting on 4 June!

Terms of reference

The committee’s terms of reference are:   

  1. To represent the views of the solicitors’ profession in Wales and Welsh solicitors’ current priorities.
  2. To work with The Law Society’s Wales Office in the delivery of its services to members.
  3. To engage with the Welsh Government, the National Assembly for Wales, individual Assembly members and other stakeholders.
  4. To engage with the development of devolution including:
  • the law-making process in Wales;
  • the emergence of a distinct body of law which applies only to Wales;
  • changes in both law and process applicable only in Wales which impact on the practice of law in Wales;
  • the rule of law; and
  • access to justice

and to advise upon and disseminate this information to the Law Society and the solicitors’ profession throughout England and Wales.

  1. To recognise, promote and support the contribution of the solicitors’ profession to the Welsh economy.
  2. To promote the use of the Welsh language in the delivery of legal services within Wales.

The terms of reference were reviewed and revised by the committee in 2012 and have applied since early 2013 after they were approved by LAPB.

Membership of the committee

All 5 council members for the constituencies which are wholly or partly within Wales are automatically members of the committee.  Currently there are an additional 11 members who are not members of council.  The primary criterion for appointment to the committee is knowledge of and a demonstrable interest in the development of devolution in Wales.  Consequently many members have been drawn from universities or are practitioners who specialise within subjects in which the National Assembly has legislative competence, such as health, planning, agriculture and child care. 

We try to recruit the best members from across Wales, so we aim to maintain a wide geographic spread of members with a wide variety of specialisms and seek members drawn from commerce and industry and local government as well as private practice and a representative from the JLD.  We have a forthcoming vacancy and have identified a need for a member who practises criminal litigation to join the committee.

Statement of Territorial Application on LAPB papers

The jurisdiction of England and Wales consists of three strands of law: law which applies only to England, law which applies only to Wales and, most commonly, law which applies to both England and Wales.  As the laws which apply to England and those which apply to Wales continue to diverge, it has become increasingly important for LAPB law reform committees to know whether the papers they are reading apply to England only, Wales only or to both England and Wales.  This is why the committee campaigned for a statement of territorial application to be included on every policy paper which is prepared for a LAPB law reform committee.  This was agreed by LAPB in the spring of 2013 so it should be standard practice by now. 

Ring-fenced places for members with knowledge of Welsh practice on LAPB law reform committees

Since 2013, the LAPB has agreed to reserve a place on certain law reform committees for a member with knowledge of Welsh practice and issues.  These committees are:

  • the access to justice committee
  • the civil justice committee
  • conveyancing and land law
  • family law committee
  • housing law committee
  • human rights committee
  • mental health and disability committee
  • planning and environmental committee and the children law sub-committee.

Six of these committees cover areas of law in which the National Assembly has legislative competence and the other three concern access to justice, the rule of law and human rights or engage Welsh language issues.  Not all of these committees yet include a member for Wales but it is hoped that these gaps will be filled in the forthcoming committee recruitment round.  The Wales committee was the catalyst for this commitment.

Representation of Wales on Council

The issue which has taken up most of my time as chair of the Wales committee was the representation of Wales on council.  This issue arose in October 2010 and was not resolved until the spring of 2013 after 2 electronic ballots were conducted of all solicitors working or practising in the 5 constituencies wholly or partly within Wales (including the whole of the South West of England!).   Only a small fraction of those eligible responded.  By a small margin the collective opinion was that the current arrangements should continue and the matter was passed on to the Council Membership Committee.  I suspect that this issue will re-emerge the next time the CMC reviews the boundaries of the geographic constituencies, as the sense of a separate Welsh legal identity grows.

Devolution and Policy Work

The biggest policy issues which have concerned the Wales committee since 2011 have concerned the need for a separate jurisdiction for Wales and the related issue of reviewing the current devolution settlement.  Both the National Assembly and the Welsh Government consulted on the desirability of a separate Welsh legal identity in 2011 and 2012.  The Wales committee and Wales Office responded to these consultations. 

In October 2011 the Westminster government appointed the Silk Commission to review the devolution settlement for Wales, including looking at fiscal powers for Wales.  We did not respond to the first consultation, which concerned fiscal powers.  The Government’s response to this is contained in a draft bill which will probably proceed through Parliament in the 2014/15 session.  We responded to the second consultation, dealing with the current devolution settlement.  The Wales Office also arranged a seminar on devolution in Cardiff last spring, which was chaired by Lord Thomas of Cwmgiedd (as he now is) and which was attended by members of the Silk Commission, the judiciary, both professions, academics and members of the Wales committee.  I also participated in a seminar arranged by the Silk Commission.  The Silk Commission’s report was published on 3 March.  It is unlikely that any of its recommendations will be implemented for a couple of years, as there will be a general election for the UK Parliament in 2015 and Assembly elections in 2016.

Publicising Welsh law

Lowri Morgan arranged for a Law Society Gazette roundtable event, which included a Silk Commissioner – Helen Molyneux - and Rhodri Jones, a member of the Wales committee, last summer.  I wrote an article for the Gazette on the Supreme Court decision in the Welsh Byelaw Bill - this was the first reference to the Supreme Court of any piece of primary legislation passed by a devolved legislature - it was also the first bill passed by the National Assembly!  The Supreme Court’s decision concerning the second bill the Attorney General has referred to it is expected imminently.

Richard Owen of the Wales committee wrote an article on the Silk Commission’s report which was published in the 17 March edition of the Gazette.  Wales and Welsh law has received more coverage in the Law Society Gazette during the past 15 months than it has at any time that I can remember in the period since 1977 when I first started to read it.  That is a tribute to the editor, Paul Rogerson, to Lowri Morgan, who has encouraged the committee to write articles for it and to the contributors whose articles have been published.

Some attempts to publicise Welsh devolution have been less successful and possibly more desperate, such as my quixotic participation in the election for deputy vice president last year.

Finally…

This is a valedictory report since I have only one more Wales committee meeting to chair as I am stepping down on 31 August.  The challenges of seeing what changes to the devolution settlement will be made by the Wales Bill will fall to my successor, Jonathan Stephens.  I’d like to thank the committee for its hard work and Kay, Rhys, Tara and especially Lowri from the Wales Office for their hard work and dedication. 

Des Hudson was very helpful with the electronic ballots on Welsh representation on council.  Understandably he wished to cut the costs of the office rental when the lease on Capital Tower came up for renewal.  I’d like to thank him on behalf of all the practitioners in Wales for negotiating a much better deal for the premises and for safeguarding the offices in Capital Tower for the next few years.      

David Dixon

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