Assembled for change
18 June 2001
10 October 2013
25 November 2013
15 November 2013
28 November 2013
7 February 2014
Carolyn Kirby, deputy vice president of the Law Society, is worried. "It's not until one of the big London firms makes a mistake - a big mistake - that it's really going to come home to English lawyers that they really do need to pay attention to what's happening in Wales," she says. Kirby is a member of the Welsh Affairs Working Party, which has just submitted a consultation paper to the Welsh National Assembly's Review of Procedure.
It has been two years since the assembly was created and Cardiff is enjoying a renaissance. The Cardiff Bay development has rejuvenated the previously run-down docks area, the city's Millennium Stadium is the UK's stadium of choice for major sporting fixtures and the assembly itself is held in considerably more esteem than the Welsh Office ever was.
Emyr Lewis, public and commercial law partner at the Cardiff office of Morgan Cole, says: "There was the feeling that before the assembly was created, the Welsh Office was just a rubber stamp for Whitehall. Now we have democratic Welsh scrutiny for every piece of secondary legislation in Wales."
The Welsh legal profile is on the up. Eversheds' decision to close its Bristol office and move the work to the Welsh capital together with the management buyout of Bevan Ashford's Cardiff office by the resident partners and its subsequent relaunch as Morgan Lewis Mayers (MLM), is evidence of the optimism and confidence that permeate the city.
Eversheds commercial litigation partner in Cardiff Peter Watkins-Jones says: "I think it was Ron Davies who said that devolution was a process rather than an event and I think that's certainly the case. I wouldn't say that devolution has had an overnight impact. It simply means that the National Assembly is now the forum where a lot of work which would previously have been done by other organisations is centred. One can see in Cardiff - through devolution, through the increased importance of the capital, through the increased jurisdiction of the courts - that actually, the legal market is changing."
It is the National Assembly that is the totem of devolution in Wales. The Government of Wales Act 1998 transferred 95 per cent of the powers of the Secretary of State for Wales to the assembly. It now controls a budget of some £8bn and is responsible for passing, and to a lesser extent initiating, secondary legislation in areas including planning, local government, housing, health, environment, education, agriculture and economic development. Unlike England or Scotland, there is no constitutional distinction between the legislative and executive aspects of the assembly's role. How far it can go in the exercise of its power is a question the legal team faces on an almost daily basis.
The assembly comprises 60 members and, since the resignation of Alun Michael, has been led by first minister Rhodri Morgan. It is advised on legal matters by its own
in-house legal team, the Office of the Counsel General (OCG), headed by the chief legal adviser, counsel general Winston Roddick QC. Caernarfon-born Roddick practised in Cardiff before moving his practice, but not his home, to London on taking silk in 1986. He heads a team of around 40 lawyers, assisted by three assistant counsel generals.
Lewis says: "One of the striking things about the assembly, and a very welcome one, is that the OCG has managed to attract some really high-quality staff to its ranks, from both private and public sector backgrounds. It should lay the foundation for good governance for the future."
Watkins-Jones agrees. "There are a lot of committed lawyers in the OCG who want to ensure that devolution succeeds," he says. And he should know - he lost Nerys Arch, a former chief litigator in Eversheds' Cardiff team to the OCG. She was joined by barrister Keith Bush, formerly of 30 Park Place, who Watkins-Jones describes as "a counsel that I used to use on multimillion pound commercial disputes".
Others attracted in-house include Elisabeth Jones, a human rights specialist who worked at the European Court of Human Rights, and Grace Martins-Waring, the first local government lawyer to chair the Trainee Solicitors' Group.
And with Roddick on a reported salary of £112,000, it is safe to say that the attractions of the OCG are not financial. Watkins-Jones says: "People are prepared to work there for less money because they want to make it work. People are enthused by the assembly and lawyers are no different to anybody else."
All legislative work is done by the in-house team. Assistant counsel general Angela Parkes says: "What we keep in-house is the core work. This includes drafting subordinate legislation, attending and advising subject committees and giving advice to the executive on policy matters."
The non-core work is outsourced. Eversheds won the tender to be the sole external provider of non-core legal services early last year, much to the delight of Watkins-Jones and property partner Eric Evans. "As far as I was concerned this wasn't just another job. This was something completely different and something that we really wanted to win," says Watkins-Jones.
The three-year contract is serviced solely by the Cardiff office and covers employment, equal opportunities, health and safety, property, planning, commercial and litigation. Watkins-Jones says: "The only circumstances in which we would go outside Cardiff is if we need the Brussels office or any other of our overseas offices. They are there as an adjunct to the service that we provide. We do a lot of property work, a lot of highways department work, acquisitions, dealing with advice queries work, employment issues, those types of things. We also do some litigation work, although I believe that the Treasury Solicitor's department in London still does some, too."
In the event of a conflict of interest, Edwards Geldard or Morgan Cole will step in. The work is a broad remit for one firm to cover and Edwards Geldard's Cardiff head of public law Huw Williams says that some firms feel that a panel should have been set up. But Williams himself believes that "if they ended up with a very large panel everybody would end up tripping over each other".
As the assembly continues to explore its power and the procedures and processes necessary to exercise it, the amount of work outsourced so far has remained fairly limited. Unsurprisingly, there are a few areas that still need clarifying, often as much for the sake of English practitioners dealing with Wales as for the local firms themselves.
"The assembly is having to develop policy to a much greater extent than the Welsh Office ever had to," says Williams. "The administration is finding its feet in that sense and this sometimes follows through in terms of legislation." He cites the example of the contaminated land regime brought in under the Environmental Protection Act 1990. Already in force in Scotland and England, Wales has yet to bring the legislation into force. It is expected to arrive in October 2001, some 18 months after the rest of the UK.
But Parkes is unapologetic. "It's important to appreciate that within the assembly we've got a completely different set of procedures. It is a result of the very democratic and open process that we've got here - we have a degree of transparency that is substantially greater. It's worth emphasising that this is a new approach and as with anything that has democratic overtones, it can take time."
It is also worth noting that the time lag can just as easily work in reverse, as evidenced by the presence of the Children's Commissioner, appointed some time ago in Wales but which England is still waiting for.
The dangers for any English lawyers dealing with clients in Wales, or matters relating to Wales, are obvious, but inconsistent legislation is not the only area that may cause problems for both English and Welsh lawyers. "There are some difficulties at the moment in trying to track through published legislation, exactly what provisions apply to Wales and what applies to England. There have been some very confusing examples during the past two years," says Williams. One example is a statutory instrument made pre-1998, jointly by the Secretary of State for Wales and an equivalent minister in England, and therefore applying in both England and Wales. But post-1998, the capacity to amend that instrument has lain independently with the National Assembly in Cardiff and an English minister, so the situation arises where the same instrument is being amended at different times by different authorities - the Welsh Assembly and centrally by another UK government department.
With these issues in mind, it is perhaps surprising that the assembly has not been involved in more litigation. "There hasn't been enough challenges, enough court work," says Rhodri Williams, a barrister at 30 Park Place. "I think we're only really dealing with planning appeals. The problem is a lack of applicants prepared to challenge what goes on. It's a pity really as although the counsel general probably wouldn't agree, the assembly could do with a bit of courtroom publicity and to have decided cases on how far its powers lie in a direction."
Williams sees one of the problems as the fact that "there's not a culture of public law in Wales. People are still complaining about planning decisions, highways, all sorts of things, but what they are not doing is taking the opportunity to mount the new challenges that the Government of Wales Act provided." And with such challenges in mind, the assembly does have a panel of barristers already appointed for public law matters, particularly judicial reviews and other legal actions [see box]. It has announced its intention to appoint similar bodies for commercial law, damages claims and employment disputes.
The assembly is all too aware that some areas are not proceeding as smoothly as they could and it recently launched its Review of Procedure in consultation with the Law Society among others.
Kirby says: "It is sometimes problematic to know what affects Wales and what doesn't. It's therefore all very well for the assembly to issue lists of secondary legislation, but when you're looking at primary legislation you don't necessarily know whether that is subject to assembly amendment to secondary legislation or not, because each piece of primary legislation is drafted in a slightly different way."
Kirby also says that the actual powers of the assembly can be difficult to pin down. "There are parts of pre-1998 legislation over which the assembly has direct jurisdiction and parts that it doesn't, and these are covered by the Transfer of Functions Order," she says. "The Transfer of Functions Order is not particularly complicated but the notes attached to it are around 500 pages long, which, if you're trying to work through to establish if a certain piece of legislation can be covered by the assembly or not, can be quite tiresome."
But Kirby remains confident about any agreed procedural changes due to be implemented by the review body by the end of the year. "We're very encouraged by the assembly's attitude. We have a very constructive dialogue. That is not to say that we agree on every subject, but it is very open to our approaches. We find that encouraging and believe that in due course we'll arrive at a solution."
Morgan Cole's Lewis is similarly optimistic. "The assembly was given life by UK Parliament with various untied strings attached," he says. "It's interesting to see how the political dynamics of the National Assembly are now tying those strings together and giving it a shape that may be considerably different to that anticipated by its creators."
And this is a shape that is as relevant to lawyers in England as it is to those in Wales, warns Kirby. "You mention the Welsh National Assembly in London and everyone's eyes just glaze over. But if you're acting for Sony for example, setting up on a greenfield site in Bridgend and you haven't properly accessed the Welsh planning restrictions and assumed that the English ones apply, you're going to catch a major cold. When that happens, perhaps people will finally sit up and take notice."
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