The Public Law Project, Wales Conference, Cardiff
John Wotton, president, Law Society of England and Wales, 4 April 2012
Bore Da, (Borra Dah), Good morning.
Thank you for your kind introduction.
I am delighted to be here today and to have the opportunity to speak at the beginning of what promises to be a thought-provoking day, addressing important and serious questions. I am also pleased and proud that the Law Society is a sponsor of this year's conference.
I'd like to offer some views on the potential consequences of a separate Welsh legal jurisdiction, on which there is, as you will all be aware considerable current public debate. And I'd like to provide some thoughts on new Alternative Business Structures – with the first of these licences being issued last week, a subject which might in future also have some specific implications in Wales
Jurisdiction.
The National Assembly for Wales Constitutional and Legislative Affairs Committee's inquiry into the establishment of a separate Welsh jurisdiction is in full swing. The committee has attracted written evidence from respected academics, the judiciary and legal practitioners. It is now in the process of taking oral evidence from selected contributors including ourselves, the Law Society. We did, of course, also submit written evidence to the Committee.
Last week the Welsh government launched its own consultation on a Separate Legal Jurisdiction for Wales and I shall comment on a number of aspects of that consultation this morning. I hope that this consultation will provide an opportunity for the legal profession along with others to review consider and properly influence the extent and impact of law-making in Wales.
The most taxing questions may be around whether it is possible to find a suitable accommodation of Wales and its laws, within the jurisdiction of England and Wales, without formal separation.
Or, if the Welsh government considers this is impossible, whether to require that the creation of separate jurisdiction be made subject to a referendum before any constitutional changes are made?
We, the Law Society engaged effectively on earlier devolution issues - the Richard Commission and the All Wales Convention.
The third planned consultation on the jurisdiction question is Part II of the Review by the Commission on Devolution in Wales, the Silk Commission.
The terms of reference are:
'To review the powers of the National Assembly for Wales in the light of experience and to recommend modifications to the present constitutional arrangements that would enable the United Kingdom Parliament and the National Assembly for Wales to better serve the people of Wales.'
Taken in conjunction with Part I, which is currently underway and gathering evidence on the 'devolution of fiscal powers to the National Assembly for Wales' the findings (irrespective of the outcome of the current consultation) are likely to result in a new Wales Bill, in much the same way as the Scottish government has just agreed a new Act to extend its fiscal powers.
I do not propose to reach a conclusion today on whether or not Wales should separate from the jurisdiction of England and Wales. But the Law Society would accept that thought should be given to the structures needed to accommodate full law-making powers in the devolved areas, following last year's referendum.
Even without separation, we already have laws applying only in Wales, promulgated in two languages within a structure which includes Wales-specific delivery of access to justice through devolved tribunals.
Law Society members' views on a separate Welsh jurisdiction inevitably vary. We are a numerous and diverse profession, operating in a vast range of different practice, business and public sector environments. As the representative body for all our different constituencies, we have a responsibility to involve the profession in this debate and to judge the strength of views among all of our members.
Before I go any further into the detail of the separate jurisdiction question, however, I should like to make some observations on the current legislative and justice system in Wales, in order to place the current proposals in context. First I will consider the body of Welsh law, its sources and accessibility; then the courts and tribunals in Wales; and finally the Welsh language.
The body of law in Wales
Legislation applying to Wales derives from numerous sources and, following the process of devolution, exists in a plethora of forms.
Commentators have counted up to 20 types and sources of legislation in Wales.
As well as primary legislation and Statutory Instruments there is a huge body of other subordinate legislation.
When we consider all the orders, circulars and statutory guidance now made by Ministers we see how this body of law runs far beyond the few Measures and proposed Assembly Acts.
One asks oneself: “What laws apply in Wales?”
It may seem a reasonable question on the surface, but closer inspection reveals a complicated picture.
Think of all the different sources: Westminster, the National Assembly for Wales, Secretaries of State, Welsh Ministers.
Even when we know what law applies, access to the legislation becomes the issue.
For example, a member of the profession recently contacted the Welsh government library to get urgent access to a set of Directions and was told it may take 15 days for a response.
However, the Welsh government library did in fact respond later that day but it was with regret to inform our member that they had not been able to find a final or approved copy of the Directions.
An explanation was given that the Directions had not been added to the web site when they were made, nor had they been captured within the public document archive. While the library was continuing to source a copy and to rectify these current deficiencies, it was stated: 'Hopefully the Laid Document copy will provide you with helpful information in the interim. If I manage to obtain a final copy of the Directions then I will of course send you a copy'.
Is this a reasonable state of affairs?
The debate over a separate jurisdiction highlights an existing problem, acknowledged by leading academics and commentators: a failure in record keeping as more law making has been devolved.
For some time we have advocated 'a single database for all legislation applicable to Wales to be compiled and maintained as a public service'.
The UK Statute Law Database is held up as an example of such a single portal, but it is not well maintained and is not an adequate service.
It is apparent that maintaining information on legislation for Wales, with just 6,000 practising solicitors, is not commercially viable and so the task must fall to public provision. There is a need for a comprehensive Welsh Statute Book and more.
As practitioners we see a further failing by the Welsh government to facilitate the development of the law in Wales. There is a dearth of practitioners' texts, with many commercial publications failing to maintain commentary on Welsh legislation and cases. As time moves on and the body of law in Wales increases through new legislation and court decisions, this gap will become more significant. There have been announcements about ideas for developing solutions but we haven't seen those come to fruition.
I urge the Welsh government to act now to arrest the problem of a lack of recording of and commentaries on cases and to improve access to the laws in Wales at all levels.
Courts and tribunals
Administratively, an all Wales circuit was created in 2007 with the separation of Chester from North Wales. But to say that 'The administration of justice in Wales is now administered on an all Wales basis' is not entirely correct.
As the law in Wales is multi-layered so too is the delivery of justice.
There have been further developments in the arrangements for Wales under Her Majesty's Courts and Tribunal Services, including the opening of an administrative court office, which have been successful to a greater or lesser degree.
But HMCTS does not provide us with the whole picture. There are 17 'Welsh' tribunals.
The consequence of the Constitutional Reform Act 2005 was that Wales was left with tribunals operating under departments of the very executive the users of the tribunals sought to question. The Welsh Committee of the Administrative Justice & Tribunals Council published a Review of Tribunals operating in Wales in 2010, the substance of which was 'that the Welsh Assembly government [should] establish a focal point for administrative justice in the Department [of] the First Minister and Cabinet'.
This separation began later that year and the administration and policy function of some tribunals have been moved to the Administrative Justice and Tribunals Unit.
But two years into the course of the new unit, not all Welsh tribunals have joined the unit and knowledge of it is sparse. The unit has been urged to produce a website to assist tribunal users but this has not been delivered.
The unit will provide a focus for the streamlining of rules and procedure for Welsh tribunals and for the coming together of the members of the Welsh Tribunals including selection and training, but progress appears slow.
This unit is to accommodate the establishment of new tribunals such as the Welsh Language Tribunal, with responsibility for the administration of justice as it stands now and how it will look in the future.
The language
Although the “use of the Welsh language in courts” is excepted from the Welsh Language Subject under Schedule 7 of the government of Wales Act, it is a central issue.
In his paper responding to the National Assembly for Wales Inquiry Professor Thomas Glyn Watkin refers to the “existing distinction” between courts in England and Wales - “the right to use Welsh before the courts is limited to the territory of Wales”. Professor Watkin is of the opinion that if the court hearing the case cannot consider the matter in both Welsh and English, “then the notion that they can have legal authority over this sphere of their activity is compromised”.
The question of bilingual juries was considered over a period from 2007 when a Private Members' Bill was introduced into the UK Parliament, leading to a formal consultation, but the UK government's decision in March 2010 was that such a path would undermine the principle that jurors are randomly selected from the whole community.
Their conclusion was: 'The subject is not straightforward because it is one of those which comes down to a choice between two good and desirable things - in this instance, the principle of random selection in the jury system and greater use of the Welsh language in court. On this occasion the government has decided not to proceed with bilingual juries, primarily because the balance of argument lies against their negative impact on the principle of random selection of juries from the community as a whole, and hence on social inclusion and justice'.
The Welsh government consultation on a separate legal jurisdiction
Turning now to the separate jurisdiction question, in common, I daresay, with most lawyers practising in Wales, I have studied last week's consultation paper with great interest. It raises a very wide range of constitutional, administrative, judicial and access to justice issues, all of which require careful consideration, in the public interest and I do emphasise that phrase, which should be the guiding principle behind any proposals for change.
My initial impression is that the paper suggests that more thorough consideration has at this stage been given to the legislative and administrative arrangements that would have to be made in order to create a separate jurisdiction for Wales, than to the implications of a separate jurisdiction for users and providers of legal services in Wales or, indeed, for providers of legal education and training in Wales. No doubt all those groups will contribute to the consultation on the paper. The Law Society will certainly do so.
The paper suggests three key components of a separate jurisdiction: a defined territory, a distinct body of law and a separate legal system.
It rightly points out that the current legislative situation is not always easy to comprehend. Legislation passed by the Westminster Parliament and the Welsh Assembly both form part of the law of England and Wales. In that sense those laws extend to the whole jurisdiction, even though they will in some cases apply only in England, or only in Wales. And all those laws can be applied by a court sitting anywhere in England and Wales, even though there is a body of law which already applies only in Wales.
The paper also rightly states that a fully separate court system is not a requirement of a separate jurisdiction, citing as an example the role of the Supreme Court in relation to appeals from the courts of Scotland and Northern Ireland.
The paper then goes onto ask whether there are any other essential features of a separate jurisdiction, whether the current single jurisdiction is sustainable in the long term and, if so, what changes are in any event needed to the various aspects of the legal system, in the widest sense.
There is discussion of questions of cross-border enforcement of judgments and conduct of criminal proceedings and also on the powers of the Welsh Assembly in the context of a separate jurisdiction.
There then follows a remarkably short section (half a page long) on the impact of a separate jurisdiction on the legal profession, without any discussion at all of the possible implications for the public, as users of legal services, of any changes which might be made. I should like to offer some initial comments on these matters.
The solicitors' profession
It would be an unusual jurisdiction not to have a separate legal profession – a defined set of persons qualified and permitted to provide legal representation and advice within the jurisdiction, on matters of domestic law. I cannot think of any jurisdiction to which this test does not apply, many much smaller than Wales – take the Channel Islands and the Isle of Man, for example. A separate profession implies a process of qualification and regulation, designed to protect the public from the risks of incompetent advice and to serve the proper administration of justice.
In the modern world, the regulation of a legal profession does not come cheap. A sophisticated system of regulation of legal services in England and Wales has been established over the past few years, involving the Legal Services Board, the Legal Ombudsman and a set of Approved Regulators – the Law Society (through the SRA and the Bar Council (through the Bar Standards Board), to name but two. This regulatory structure, even spread across a profession as large as the 150,000 strong solicitors' profession, represents two-thirds or more of the cost of a practising certificate. To duplicate these regulatory structures for Wales alone (even at the Approved Regulator level only) would represent a huge cost burden on Welsh lawyers (and their clients).
Are we yet in a position where the body of law which applies uniquely in Wales is so extensive as to justify, in the interests of protecting the public or the due administration of justice, the costs and other consequences of a separate legal profession? For the foreseeable future, should there be any concern that the absence of a separate legal profession creates any risks (and I am not aware of any current concerns about this), would a system of accreditation of competence in “the law applying in Wales”, not be a more proportionate measure, perhaps initially on a voluntary basis?
And what of the interests of the clients, the Welsh public (both individual and corporate) needing legal advice and representation in Wales and on Welsh matters. At present they can choose any solicitor or barrister of England and Wales and the more important or specialised their need is, the more valuable that freedom of choice becomes. Furthermore, that very breadth of choice helps to sustain the competitiveness of the market for legal services in Wales. Creating a separate legal profession in Wales would have the potential to harm both choice and competition, to the detriment of clients.
And what, also, of the providers of legal education and training in Wales? At present all are able to provide QLD, GLD and LPC courses recognised by the SRA and their graduates can choose freely whether, having qualified, to practise in England or Wales. A separate recognition process for such courses for Wales would be hugely burdensome for the providers and a course recognised only for Wales would open far more limited opportunities to graduates. While the SRA has approved numerous QLD courses outside England and Wales, it has not done so for the GLD and it is not clear that it could do so for LPC courses. If the SRA were to regulate solicitors only in England, could they, or would they, accredit GLD and LPC courses in Wales?
The answers to all these questions are nuanced. It would be possible, in principle, to ameliorate the potential costs of a separate profession, which I have identified, by a variety of measures to make cross-border rights of practise and audience readily accessible and cross-qualification easy to achieve. The SRA could in principle, be empowered to regulate two solicitors' professions, of England and of Wales. All those currently qualified in England and Wales might retain that qualification indefinitely, on a grandfathered basis.
Nevertheless, in my view, the price of creating a separate legal profession for Wales, as an incident of a separate legal jurisdiction, would be a heavy one indeed.
The economic price
Legal services contribute £3.2 billion per annum to export earnings, largely driven by the popularity of the choice of the law of our jurisdiction in international trade and finance and of our courts and other forms of dispute resolution by international parties. In the context of a separate Welsh jurisdiction, whose future development was uncertain, would all this added value necessarily accrue to England not Wales? While these matters are under consideration, would England and Wales suffer as a law and forum of choice, if parties could not be certain how their contract would be interpreted after separation?
The law in England and Wales is transparent, predictable, flexible and supports the needs of modern commerce. Even for bilingual lawyers, English as the language of international business offers a competitive advantage. These features make England and Wales a highly attractive jurisdiction in which to resolve disputes.
The creation of a 'separate Welsh jurisdiction' might dilute some of these benefits. Wales could be perceived as a difficult place to do business. Conversely, economic and social advantages may flow from developing the legal profession in Wales and in the development of law that is suited to the particular situation in Wales.
ABS and other current developments in legal practice
Last week, the SRA announced the first three licences for new Alternative Business Structures – in which solicitors will work in firms not wholly owned by solicitors. One is Co-operative Legal Services (already a substantial business, with ambitious growth plans). The other two are small firms.
ABS are unquestionably a significant innovation in legal practice, but not axiomatically either a good thing or a bad thing for the legal profession. Undoubtedly, like many innovations, ABS bring with them both opportunities and risks. However, solicitors are well placed to take advantage of the wider business options that outside capital investment and external ownership may offer them.
In my view there is not necessarily a conflict between running a firm as a business, for profit, and the ethics and values that are at the head of the legal profession. On the contrary, all lawyers owe it to themselves (and their clients and employees) to run their practices in a thoroughly professional and business-like manner.
It is true that particular risks arise from external ownership of law firms, but I am confident that the foreseeable risks inherent in Alternative Business Structures have been identified, and the appropriate measures taken by the SRA to ameliorate and manage them. I have no reason to suppose that these measures will not be successful, as the principles that underlie them are sound.
However, I do anticipate that ABS will accelerate a move towards greater efficiency and consolidation in the English and Welsh legal services market; a move which is already in progress.
I mention ABS in this context for two reasons. One is that they are indicative of a number of changes taking place in the structure of our profession, as a result of the new regulatory system and changes in client and commissioner demand. For example, more barristers and solicitors are practising together in the same firm (62 such mixed partnerships regulated by the SRA, a recent count) and a single QASA will govern advocacy in the criminal courts by barristers and solicitors alike. Is the current division of our profession sustainable in the long term? The second is to ask whether these changes would continue to march in parallel in England & Wales if a separate jurisdiction were to be created, particularly if it involved the creation of a separate profession? Would ABS, or other practices with ambitious growth plans, be as willing to invest and create jobs in Wales in that context? And would ABS, unlike individual law firms, continue to be licensed to provide services in England and Wales?
Conclusion
The Law Society takes the current debate on a separate jurisdiction very seriously and will continue to contribute fully and objectively to it, from the perspective of the interests of the public, the administration of justice and the solicitors' profession. Whatever political and administrative choices are taken by Parliament, the Assembly, Westminster and Cardiff, and the people of Wales, we would hope to continue to represent all solicitors in England and Wales, in whatever kind of practice they operate. We believe that a maintaining a single profession would be in the public interest, even if a separate Welsh jurisdiction were to be created, unusual as such an arrangement might be.
We will also continue to promote the benefits of the jurisdiction of England and Wales on a global stage.
As I started out by saying, it is not for me to say today whether Wales or England should declare a separate jurisdiction. But I do think that it is a serious question which warrants careful consideration by solicitors in both countries.
Thank you