The law of Wales or the law of England and Wales?

Statute Law Review

Volumn 26, Issue 3, 2005, Pages 135-145

  Jones, Timothy H ^a   Turnbull, John H ^b   Williams, Jane M ^a  

^a SWANSEA UNIVERSITY   (United Kingdom)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 27144515320     PISSN: 01443593     EISSN: None     Source Type: Journal    
DOI: 10.1093/slr/hmi015     Document Type: Article

References (44)

1. Report of the Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (2004), at p.19 (hereafter referred to as the 'Richard Commission').
2. The presentation and accessibility of Wales only provisions in primary legislation were the subject of detailed examination by the House of Commons Welsh Affairs Committee, Fourth Report of Session 2002-2003, The Primary Legislative Process as it affects Wales (HC 79), and the Richard Commission, as well as being the subject of academic commentary: See, e.g., R. Rawlings, Delineating Wales. Constitutional, Legal and Administrative Aspects of National Devolution (Cardiff: University of Wales Press, 2003), ch. 9.
3. The Richard Commission, n 1, above, recommended this. For discussion, see T. H. Jones and J. M. Williams, 'The Legislative Future of Wales', 68 M L R 642 (2005).
4. See F. Bennion, Statutory Interpretation (4th edn, London: Butterworths, 2002) at pp. 277 and 282-84.
5. This can be phrased more elliptically: 'this Act does not extend to Scotland or Northern Ireland' (see the European Parliamentary and Local Elections (Pilots) Act 2004, of which more is given/discussed below).
6. This can be phrased less elliptically: 'this Act shall extend only to (a) England and Wales, and (b) Scotland' (see Age-Related Payments Act 2004, s. 10).
7. See, e.g., Gender Recognition Act 2004, s. 28.
8. See, e.g., Fire and Rescue Services Act 2004, s 63.
9. Bennion, above n 4, at p. 277.
10. One is the Regional Assemblies Act 2003, discussed below.
11. A recent example is the Health Protection Agency Act 2004, which establishes a United Kingdom wide body.
12. Bennion, above n 4, at p. 284. Recent examples can be seen in the Gender Recognition Act 2004, s 28(5) and the Child Trust Funds Act 2004, s 30.
13. See, e.g., evidence given to the Welsh Affairs Committee and the Richard Commission, above n 1.
14. There is one example of an extent provision stating that a part of an Act extends 'to Wales only': Local Government Act 1972, s 38. It may be that this is best seen as a drafting 'slip'.
15. See, e.g., Rawlings, above n 2, at pp. 460-62: '"For Wales, see England" (and London)'.
16. See C. M. V. Clarkson and J. Hill, Jaffey on the Conflict of Laws (2nd edn, London: Butterworths, 2002), ch. 3 ('Civil jurisdiction'). The leading treatise, Dicey and Morris on the Conflict of Laws (13th edn, London: Sweet and Maxwell, 2000, by L. Collins and others), para. 1-068, perpetuates the Diceyan inaccuracy that 'England includes Wales... for reasons of convenience and brevity. It would be cumbersome to have to add "or Wales" after "England" and "or Welsh" after "English" every time those words were used'.
17. See T. H. Jones and J. M. Williams, 'Wales as a Jurisdiction' [2004] P L 78.
18. Ibid, at p. 80 n 16.
19. It recited, 'Wales shall be, stand and continue for ever from hence forth incorporated, united and annexed to and with this Realm of England'.
20. See, generally, J. Davies, A History of Wales (London: Allen Lane, 1993).
21. See Jones and Williams, above n 17, at p. 81
22. Bennion, above n 4, at pp. 299-300.
23. Ibid, above n 17, at pp. 80-81.
24. The Laws in Wales Act 1542, s 47, provided that sale of stolen goods at a market overt or fair in Wales conveyed no title. 'Wales' here meant the territorial unit as it existed prior to local government reorganisation in 1972.
25. See I. R. Davies, Sale and Supply of Goods (1st edn, London: Longman, 1990), at p. 169.
26. See Jones and Williams, above n 17, at pp. 83-84.
27. Licensing Act 1964, ss 66 and 67 and Sched 8 (repealed by the Licensing Act 2003).
28. Examples include the Local Government Finance Act 1988, s 140, the Education Reform Act 1988, s 232(5), and the Local Government and Housing Act 1989, s 191.
29. In the course of the drafting of this major local government reform, it seems that Homer nodded, once: Part II of the 1972 Act, which dealt with the creation of the new local authorities in Wales, is stated in s 38 to extend only to Wales. The authors have identified no other such provision and it is assumed that this provision must be regarded as a drafting 'slip', notwithstanding, we would argue, its accuracy.
30. See Jones and Williams, above n 17, at p. 93, where 12 post-devolution Acts with significant Wales only provision are listed on a range of subjects including health and social care, education, local government, transport, and the environment.
31. Government of Wales Act 1998, Sched 2.
32. The 'breadth' and 'depth' of the Assembly's powers were terms used by the Richard Commission, above n 1, to denote, respectively, the range of devolved fields and the scope of powers conferred within each field.
33. Pre-devolution subordinate legislation was still largely made compositely for both Wales and England. The Secretary of State for Wales merely added his name as a joint signatory.
34. Government of Wales Act 1998, s 122.
35. Perhaps, the notion of a 'quasi-jurisdiction' needs to be recognised.
36. The equivalence of the Welsh and English languages within the courts is guaranteed by the Welsh Language Act 1993.
37. See the Law Terms Act 1830.
38. See Rawlings, above n 2, ch. 14, for a discussion of developments in the legal system of England and Wales post-devolution.
39. Welsh Language Act 1993, ss 22 and 24.
40. The Richard Commission, above n 1, at pp. 193-94, does not address this issue in detail.
41. If there develops an increasing body of law taking effect only in Wales, no doubt this will have implications for the organisation of the legal system, including both courts and the legal professions.
42. Thus, the Smoking in Public Places (Wales) Bill 2003-2004 (a failed measure introduced by a Private Member in the House of Lords), cl. 4(4), stated: 'This Act extends to Wales only'. When re-introduced in the following session, no extent clause was included.
43. See I. R. Davies, T. H. Jones and J. M. Williams, 'Welsh Labour's Dilemma: Primary Powers?', Western Mail, 13th September 2004.
44. The formula, 'England, Wales and Scotland', used in s 163(9) of the Political Parties, Elections and Referendums Act 2000, achieves this, in contrast to the use of 'England and Wales' where in fact there is different provision for England and Wales. The substantive provisions of this Act use the expressions 'in England and Wales' and 'in Scotland' (see, for example, Sched 12, para. 2(2)). The thinking behind the extent clause seems territorial; that behind the substantive provision is jurisdictional. This is not suggestive of consistency in drafting practice.