Going it alone

Devolution has produced many opportunities for the Welsh legal world, but change is never easy. Tessa Shellens investigates what it will take to overcome the teething problems

Devolution in Wales has been greeted with mixed reaction. There is a degree of scepticism about the extent of power given to the National Assembly of Wales in comparison with Scotland. There has been considerable public frustration in Wales because the limitation of power has rendered the assembly ineffectual in opposing the choice of Welsh sites by the Ministry of Agriculture, Fisheries and Food (Maff) for genetically modified (GM) crop testing.
But the muted response to the extent of the assembly's activities in the first two years belies a creeping constitutional change of significant effect for lawyers in both England and Wales acting for Welsh clients. Running alongside this quiet constitutional revolution is the progressive devolution of the Welsh courts' administration, which allows the opportunity for lawyers to argue cases locally. The opportunity has been created to bring cases before the Administrative Court sitting in Wales instead of having to get on a train to Paddington. The combined effect of this change is a move towards the development of a concept known as 'Legal Wales'. The recognition of Legal Wales as a body and system of law is avidly supported by the judiciary, the Office of Counsel General in the assembly, the Law Society in Wales and members of the Welsh bar.
The manner in which practitioners respond to these new opportunities will determine the future of the legal practice in years to come. Legal Wales can only attain credibility if the law it produces is of sound quality and its lawyers, both solicitors and barristers, demonstrate the skills to match.

Legal Wales can only attain credibility if the law it produces is of sound quality and its lawyers, both solicitors and barristers, demonstrate the skills to match

The constitutional change arises from the way that the powers were devolved to the assembly and its ability to draft its own secondary legislation. The Government of Wales Act gave the assembly the functions previously administered by the Welsh Office. The effect was to pass the assembly a mixed bag of statutory functions contained in the Transfer of Functions Order. Further powers have, and will continue to be, devolved to the assembly by way of various acts passed at Westminster.
But the approach has been entirely piecemeal, and in certain cases inconsistent in approach. For the practitioner this has created a challenge in terms of researching and reaching a conclusion as to whether a power has actually devolved to the assembly or remains administered from Whitehall.
In view of the assembly's powers to write its own secondary legislation, there is also a significant effect on the commencement of legislation. Increasingly, commencement orders are differing so that the practitioner may be caught out by believing that an act or a portion of an act which commenced in England will automatically have commenced in Wales. This is no longer necessarily the case, and while this offers the assembly the opportunity to be innovative and to lead the way, it must avoid lagging behind in the implementation of legislation. There is already concern that in planning, new inquiry procedure rules enjoyed in England are not yet applicable to Welsh planning inquiries.
Perhaps more significantly, the regulations made under a statute may differ, not just in terms of timing, but also in variations in drafting and effect between England and Wales. Practitioners need to respond to this situation by being aware of the need to check Welsh legislation and know and understand what they are looking for. The Law Society was so concerned by the need to respond to the change that it recently issued all practitioners in England and Wales a help card to draw attention to the effect of devolution on the development of a growing body of Welsh law. Initially there were concerns about delays in publication of Welsh secondary legislation, but this has been rectified by the assembly and appropriate legal publishers.
In the Foot and Mouth crisis, the assembly helpfully used a website to draw attention to the orders which applied in Wales. But with Maff remaining the lead organisation dealing with the crisis in Wales, this situation demonstrates the tensions and confusion which exist. When the assembly issued its emergency orders there was criticism that the orders were not translated into Welsh because of a lack of time and resources.
But despite these teething problems, within the assembly itself is a team of highly specialist lawyers led by the counsel general Winston Roddick QC. The team is at the forefront of developing the concept of Legal Wales. The demands of the community mean that public organisations, such as local authorities with their own in-house lawyers, and private practitioners in Wales must keep abreast of change to ensure that advice to clients is accurate. Demands also mean that the assembly can be put under proper scrutiny in the way that it exercises its functions with appropriate reliance on judicial review where there may be opportunity to challenge the use of a power.
The very nature of devolution means that there should be easier access to the higher courts in Wales. The judiciary has been very keen to encourage this development, and there is a clear obligation on practitioners to ensure effective use is made of the facilities available.
But there has been a degree of disappointment in the lack of 'take-up' of the opportunity to use the Administrative Court in Wales, with cases still being brought and heard in London. Part of the problem may be the shortage of Welsh lawyers with expertise in public law. If work has had to go to specialist counsel in London then naturally the conduct of the case goes there too. There are also few firms with a public law specialism in fields such as education, human rights and community care. It will take time to break down the traditional reliance on London agents, but the effect of the development of Legal Wales is that practitioners have an opportunity to develop their practices so that they can offer quality advice locally.
While the general perception is that the Welsh National Assembly is working more effectively since the coalition arrangement between the Labour party and the Liberal Democrats, it has begun to take on board the need to review the way its powers are exercised. It needs to ensure that its law remains accessible to the community and its practitioners, that practitioners are able to keep abreast of the change and that the body of law which it develops is well drafted. A welcome development has been the dynamic activity of the local Law Society, working through its regional office in Cardiff. It has created a working party on Welsh affairs which meets regularly with the Office of Counsel General to discuss issues of mutual interest. The challenge to the Welsh bar is to respond to the changes with investment in members of chambers who can develop appropriate expertise and respond to the needs of solicitors and their clients.
Wales has shown it can lead the way – the Welsh Development Agency has been in existence for about 20 years, while regional development agencies in England are a new phenomena. In Wales this gave practitioners the opportunity to develop expertise in urban and rural regeneration work. But the challenge for Legal Wales is far more comprehensive and only time will tell whether its practitioners are able to respond to the challenge. n
Tessa Shellens is a consultant in healthcare and public sector law at Morgan Cole.