English and Welsh law: the big picture

The headlines may be dominated by the effect of Brexit on our domestic law but other, less well-publicised, developments relating to legal divergence are likely to have a more significant impact in certain areas, many of them relevant to property. The differences between the law in England and that in Wales are still generally below the radar but are already considerable. What is more, both the degree and pace of change are set to increase.

In this opening article we aim to set the scene. In future articles we will look at specific property-related matters that have devolved to the National Assembly for Wales – including property taxes, landlord and tenant legislation, planning and environmental law – and what that means in practice.

The story to date

Legal devolution in Wales is a comparatively recent development.

The Government of Wales Act 1998 established the Assembly, which had limited powers to make secondary legislation. This was followed by the Government of Wales Act 2006, which extended the scope of the Assembly’s legislative powers so that it had the right to make primary legislation in a number of key areas of national significance. The devolved areas of particular relevance to property transactions included:

• housing;
• environment;
• town and country planning;
• highways and transport;
• taxation;
• water and flood defence;
• agriculture, forestry and rural development; and
• monuments and historic buildings.

A body of exclusively Welsh law in these areas has therefore been building up for some years. But devolution has now gone further. The Wales Act 2017 (2017 Act) turned the “devolved powers” model on its head by switching to a “reserved powers” basis. As a result, law-making power has been transferred to the Assembly on all subjects other than those specifically reserved to the UK parliament by the 2017 Act.

The “reserved powers” model

The 2017 Act sets out a series of “general reservations” followed by “specific reservations”. There are also some general restrictions. For example, there can be no modification of aspects of private law, including trusts.

The lists of reservations are an interesting read – albeit a confusing one, running as they do to more than 28 pages. The general reservations include:

• the courts, in particular their creation and jurisdiction, thus preserving the single legal jurisdiction of England and Wales;
• tribunals, save for those whose functions are only exercisable in relation to Wales and do not relate to reserved matters; and
• the topical reservations of international relations and regulation of international trade, including “relations with the EU and its institutions”.

The specific reservations are extensive and are grouped under 14 headings. They include:

• monetary policy, save for devolved taxes (which include land transaction tax, the Welsh equivalent of stamp duty land tax) and local taxes (such as council tax and non-domestic rates);
• land registration;
• planning in relation to relevant nationally significant infrastructure projects;
• telecommunications and internet services;
• health and safety;
• energy conservation; and
• oil and gas pipelines and offshore installations.

To complicate matters, many of the reservations in both categories are subject to one or more exceptions. There are also exceptions to the exceptions.

Accessibility and codification

A consultation document published in October 2019 reported that the Assembly had at that point passed 63 Measures or Acts since 2007 and that the Welsh ministers had made more than 6,000 statutory instruments since 1999. Nevertheless, the vast majority of the laws that apply to Wales still derive from the UK parliament. Therefore, it is quite a minefield. The fact that legislation “made in Wales” must be enacted in English and Welsh and both versions are of equal standing adds another level of complexity.

As a result, there is a strong impetus to improve the accessibility of the law in Wales, with consolidation and codification seen as essential for achieving that. One consequence of this is the Legislation (Wales) Act, which received royal assent in September 2019. This imposes a duty on the Counsel General for Wales (the Welsh government’s chief legal adviser) to keep the accessibility of Welsh law under review. There is also a requirement that a programme to improve accessibility is prepared for each Assembly term, specifically to include proposals for consolidation and codification.

The Welsh government subsequently published a consultation on the classification, consolidation and codification of Welsh law. Responses were invited by 16 January 2020 and we await its outcome. Work has already begun on a Planning Consolidation Bill.

A separate Welsh jurisdiction?

Matters do not stop there. At present, Wales remains part of the single legal jurisdiction of England and Wales. The independent Commission on Justice in Wales was set the tasks of reviewing the operation of the justice system in Wales and of setting a long-term vision for its future.

The Commission published its report in October 2019 and it is a radical one. Its 78 recommendations include:

• devolution of justice; and
• that the law applicable in Wales should formally be identified as the law of Wales as distinct from the law of England as it is confusing that Welsh law and English law are held to be part of a single legal system.

The first minister of Wales has said that he wants to “open a dialogue” with the new UK government about how justice is delivered in Wales in future.

Crucial differences

Legal devolution in Wales may not make the front page but we ignore it at our peril if we are involved in areas where it is having an impact. In a 2016 report the Law Commission mentioned anecdotal evidence of lawyers giving advice, or turning up in court, without appreciating that the law in England and in Wales was different. Let that not be us!