Wales

Welsh law update: recent developments

A review of the latest developments in significant case-law, policy and practice.

About the author: Dr Huw Pritchard is a lecturer in devolved law and governance at the Cardiff School of Law and Politics, Cardiff University.

The future of Welsh law: classification, consolidation and codification

Proposals for consolidation and codification of Welsh law continue to progress following the passing of the Legislation (Wales) Act 2019.¹ The Welsh Government is currently consulting on how a taxonomy of Welsh law should be structured, which areas of law are most in need of consolidation, proposals for codification, and what activities the Welsh Government could undertake to improve understanding of Welsh law. The consultation ends on 16 January 2020.

Wales Office: Government's legislative programme

On 15 October, Alun Cairns, Secretary of State for Wales, made a Written Statement about the government's legislative programme (Wales): in Written statement - HCWS6.²

The legislative programme for the Second Session was outlined by Her Majesty on Monday 14 October. This statement provides a summary of the programme and its application to Wales. (House of Commons WS6 Government's Legislative Programme (Wales)).

The legal sector in Wales: a rapid review

The Welsh Government-commissioned report on the legal sector in Wales identifies that the profession is exposed due to the reduction of legal aid, the closure of magistrates’ courts, and the sector’s high dependence on the conveyancing market.³ There are also risk factors, including the relatively small size of many Welsh law firms, the ageing demographics of the solicitor population, and the absence of a notable LegalTech sector.

However, there is a more positive story for 'unconventional legal practices' and public sector innovation through intra-regional co-operation. The report then identifies areas where the Welsh government could usefully intervene and co-operate with the professions and academia to support the legal sector.

Plans for Law Council of Wales

The proposal for a Law Council of Wales was published, on 2 October, by the Commission on Justice in Wales.› The commission, chaired by Lord Thomas of Cwmgiedd, was appointed in 2017 by the Welsh Government to review the justice system in Wales and set a long-term vision for the future. The commission published its report containing its findings and recommendations on 24 October (see page 4 of this issue).

Welsh Government legislative programme 2019–2021

The First Minister, Mark Drakeford AM, announced the Welsh Government’s legislative programme for 2019–2021 on 16 July.

A Local Government and Elections (Wales) Bill will extend votes to 16 and 17 year olds in local government elections.

There are also proposals to introduce a GP indemnity Bill to create an existing liability scheme, alongside the current future liability scheme.

As well as pressing on with the implementation of the Renting Homes (Wales) Act 2016, the government will also be working on legislation to protect tenants from no-fault evictions through a section 21 order (under the Housing Act 1988). The government has announced a wholesale reform to the curriculum of compulsory education in Wales based on six areas of learning and experience and three cross-curricular responsibilities to be introduced in September 2022. ›

Legislation to begin the process of implementing the curriculum was announced by the First Minister. A curriculum and assessment Bill will set the principles, freedoms and structures for the new curriculum. Alongside this, a tertiary education and training Bill will establish a Tertiary Education and Research Commission to replace the current Higher Education Funding Council in Wales.

Based on the ‘Improving public transport’ white paper, a new Public Transport (Wales) Bill will introduce the governance to introduce an integrated public transport network in Wales.

Housing: section 8 notices and H(W)A s7

Evans and Evans v Jarvis (Swansea CC E1PP056A, on appeal from Haverfordwest CC, 20 August 2019, unreported)› Mr Jarvis issued a claim for possession of a residential property due to rent arrears. At first instance, he was awarded possession.

An appeal was brought on the basis that Mr Jarvis had not complied with the licensing requirements under the Housing (Wales) Act (H(W)A) 2014. Although he had registered with Rent Smart Wales and become licensed by the time of the appeal hearing, he was not at the time of the section 8 notice. Under H(W)A s7(2)(f), ‘serving notice to terminate a tenancy’ requires a landlord to be licensed, but does not mention section 8 notices expressly.

HHJ Garland Thomas held that there was no reason to exclude section 8 notices from H(W)(A) s7, as the intention of the Act is to provide a high degree of protection for tenants. The order of possession was bad in law, and the appeal on the tenants’ behalf was allowed, with a condition of payment of rent and a contribution towards arrears.

Implementation of new additional learning needs structure delayed

In September, Kirsty Williams Minister for Education announced that there would be a delay to the planned implementation of the new Additional Learning Needs (ALN) structure under the Additional Learning Needs and Education Tribunal (Wales) Act (ALNET) 2017. The original proposal was for the new scheme to be implemented over a three-year period between September 2020 and 2023. This has now been postponed to 2021.

The statutory roles created by the ALNET Act will commence in January 2021, but the phasing of the new ALN system will not commence until the new school year in September 2021.

Children (Abolition of Defence of Reasonable Punishment) (Wales) Bill

The bill seeks to remove the defence of reasonable punishment from parents, or those acting in loco parentis, to charges of common assault or battery.¹› The Children, Young People and Education Committee, in its Stage 1 report, agreed to the general principle of the bill, as required by Stage 1 of the legislative process, but without the support of two committee members.¹¹

The principles of the bill were supported with the recommendations that a wide-ranging awareness raising campaign should be put in place, bolstered by a duty on Welsh Ministers to provide information and raise awareness, and there must be universal support for parents across Wales. The committee further stipulated:

That the Welsh Government allow sufficient time between royal assent and commencement of the bill’s substantive provision... We believe this time will be needed to enable the provision of information and support to parents, to raise awareness of the legislative change, and to update the necessary training and guidance, all of which we conclude are crucial to the effective and proportionate implementation of the bill and the delivery of its stated aims (recommendation 3 page 103).

Public Services Ombudsman (Wales) Act 2019

The Public Services Ombudsman (Wales) Act (PSO(W)A) enhances the powers of the Public Services Ombudsman for Wales.¹² The PSO(W)A allows the ombudsman to accept oral complaints for the first time rather than the current restriction on accepting complaints in writing only. The Act provides some innovative powers enhancing an ombudsman’s role for the first time in the UK by allowing the ombudsman to undertake own initiative investigations without the need for an investigation to be based on a direct complaint.

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1 Available at: https://tinyurl.com/y5jz26ul

2 Available at: https://tinyurl.com/y23ngx7z

3 Available at: https://tinyurl.com/y5scvr7n

4 Available at: https://tinyurl.com/yy3qlcpd

5 Plenary available at: https://tinyurl.com/y6elkzf7

6 See ‘New school curriculum: overview’, available at: https://tinyurl.com/ y2bzz6we

7 See ‘Welsh Government consultation paper. Improving public transport’, available at: https://tinyurl.com/y23h9p2b

8 See: ‘Rachel Anthony success in case where court decides section 8 notices do fall within section 7 Housing Wales Act 2014, available at: https://tinyurl.com/yy6qo5fo

9 Written Statement: Implementation of the Additional Learning Needs system, Kirsty Williams, Minister for Education,17 September 2019, available at: https://tinyurl.com/y6brps3y

10 For details of the progress of the bill, visit: https://tinyurl.com/yxdk5clu

11 The report is available at: https://tinyurl.com/yygoyzgp

12 Available at: https://tinyurl.com/yynhkqvf