UPDATE: Researching Applicable Law in Wales – What is Unique in Wales?

By Lillian Stevenson & Dr. Catrin Fflur Huws

Dr. Catrin Fflur Huws is currently a senior lecturer at Aberystwyth Law School Aberystwyth University, specializing in issues of linguistic equality, the diversification of Welsh and English law post devolution, and property law in a devolved context. Catrin provided the first section on The Welsh Legal System of this article.

Lillian Stevenson was Academic Services Manager and Law Librarian at Aberystwyth University until August 2015. She studied law at Birmingham University and Sheffield University and information studies as a postgraduate at the College of Librarianship Wales, now the Department of Information Studies, Aberystwyth University. Subsequently she worked in legal publishing and as law librarian at Manchester Metropolitan University and Norton Rose, City Law Firm in the United Kingdom.

This article is intended as an introduction to researching applicable law in Wales, including a brief overview of the development of the Welsh Legal System.

Published May/June 2018

(Previously updated in January 2014 and January 2017)

See the Archive Version!

1. Background

1.1 The Legal System in Wales

Welsh Legal History
Until the 16th century, there were some indigenous Welsh laws. However, these laws did not apply to the whole of Wales. The earliest example of indigenous Welsh laws dates back to the thirteenth century, although they are associated with the tenth century prince, Hywel Dda (Internet Archives version) and therefore known as Cyfraith Hywel or the Laws of Hywel. However, as early as 1284, the Statute of Rhuddlan had applied a modified form of English law to parts of Wales, though the Marcher Lordships and the Principality of Wales continued to use their own customary laws for a long time after this. The Laws in Wales Acts of 1535 and 1542 provided that Wales would thereafter be governed by the law of England. However, a separate court system existed until 1830, known as the Court of Great Sessions. Click here for the Crime and Punishment Database of The National Library of Wales.

Welsh Contemporary Law
On an international level and as a matter of UK constitutional law, Wales is part of the United Kingdom, and therefore reference should be made to the material on United Kingdom law. On a domestic level, Wales is part of the legal jurisdiction of England and Wales, and therefore the constitutional structure, the structure of the courts and the law-making process for legislation made by the Westminster Parliament in relation to Wales are as described in relation to England and Wales in the material on United Kingdom law. However, there are significant and emergent differences to which attention must be drawn.

The Development of Devolution in Wales
The Government of Wales Act 1998 transferred certain functions of the Secretaries of State to the National Assembly for Wales. Although the National Assembly for Wales could only pass secondary legislation, it also had the power to initiate Wales-only bills for consideration by the United Kingdom Parliament. Examples include the Children’s Commissioner for Wales Act 2001.

In 2006, the Government of Wales Act 2006 devised two schemes for Wales to make primary legislation. The first of these was under Part III of the act, and permitted the National Assembly for Wales to pass primary legislation known as Measures, subject either to the subject matter of the measure being within the competence of the National Assembly for Wales. Although the procedure under Part III was cumbersome, a number of measures were passed by the National Assembly for Wales between 2007 and 2011.

In 2011, pursuant to a referendum, Part IV of the Government of Wales Act 2006 was brought into force. Part IV allows the National Assembly for Wales to pass primary legislation on 20 areas within its legislative competence as detailed in Schedule 7 of the Government of Wales Act 2006.

The Government of Wales Act 2006 also changed the structure of the legislature and the Government. Therefore, whereas the scheme devised by the Government of Wales Act 1998 did not create a separate legislature and executive, the 2006 Act created a separate executive body known as the Welsh Government. Nevertheless, the relationship between Wales and Westminster continues to be complicated. Accordingly, a Welsh Government Consultation took place in 2012 addressing whether and under what conditions Wales should be identified as a separate jurisdiction. Litigation has been undertaken on two occasions regarding whether legislation enacted by the National Assembly for Wales has been within its competence. These cases are:

The Wales Act 2017 changed the framework of devolution in Wales from a conferred powers model, whereby powers are specifically devolved to the National Assembly for Wales, to a reserved powers model, in essence meaning that everything that is not reserved to Westminster is devolved to Wales – an act that mirrors the approach taken in the Scotland Act 1998, although with a greater number of reservations.

The European Union (Withdrawal) Bill
This is the bill that will operate to affect the United Kingdom’s withdrawal from the European Union. Clause 11 of the bill currently provides that legislative powers currently held by the European Union will be devolved initially to the Westminster Parliament. On the 17 January, the National Assembly for Wales voted to pass a legislative proposal on a Wales Continuation Bill, the aim of which is to ensure that legislative powers that are currently held by the European Union will devolve to Wales if they are within the legislative competence of the National Assembly for Wales.

Welsh Language
Another area where Wales diverges from England relates to the law relating to language. Section 22 of the Welsh Language Act 1993 permits the Welsh language to be spoken by any party, witness or other person who desires to speak it. Furthermore, section 156 the Government of Wales Act 2006 provides that the National Assembly must enact all its legislation bilingually, with equal stand­ing being given to both versions of the text. Section 1 of the Welsh Language (Wales) Measure 2011 provides that the Welsh language has official status in Wales and requires public and other bodies to provide bilingual services.

Courts and Tribunals
Wales is not a devolved jurisdiction, and unlike Scotland therefore does not have separate courts from England. However, laws made in Wales may be applied and interpreted in any court in England and Wales, although the law itself is not applicable outside Wales. Furthermore, cases decided in the Welsh courts will provide valid precedents outside Wales, and cases decided on points of law applicable in relation to Wales will provide persuasive precedents for situations in England where the relevant law is similar.

The Welsh devolution settlement has also created a situation where the tribunals system in Wales is very different from the tribunals system in England. Some tribunals (e.g. employment, immigration and asylum) deal with non-devolved matters and cases originating in Wales are dealt with under the same processes as those in England and the rest of the United Kingdom, in accordance with the Tribunals Courts and Enforcement Act 2007. There is also a President of Welsh Tribunals, a senior judicial post that relates solely to Wales.

Other tribunals have been repealed in relation to England, but continue to apply in Wales. These are the Special Educational Needs Tribunal for Wales, the Residential Property Tribunal Wales, the Mental Health Review Tribunal Wales , the Agricultural Land Tribunal for Wales, the Adjudication Panel for Wales, and the Valuation Tribunals for Wales. However, there is a third group of tribunals that have been established under the law applicable in Wales. These include the Welsh Language Tribunal. These Wales-only tribunals do not form part of the First Tier and Upper Tier tribunal structure that applies to the England and Wales Tribunals and the UK-wide tribunals following the Tribunals Courts and Enforcement Act 2007, and an application is made directly to the relevant tribunal for the matter concerned.

Welsh Tax Levying Powers
The Wales Act 2014 and the Wales Act 2017 confer powers on the National Assembly for Wales in respect of tax levying. The Tax Collection and Management (Wales) Act 2016 creates the Wales Revenue Authority, which is the body responsible for collecting and managing Welsh taxes. From April 2018, the Land Transaction Tax replaces the Stamp Duty Land Tax, the Landfill Disposals Tax replaces the Landfill Tax, and the Income tax will also be partially devolved from 2019.

The Sources of Legislation Relating to Wales
Legislation applicable solely in relation to Wales may emanate from four sources at the domestic level. Apart from non-devolved matters (i.e. those not listed in Schedule 7 of the Government of Wales Act 2006) and those reserved under the Wales Act 2017 law applicable in relation to Wales may emanate:

Identifying the law that applies in relation to Wales as distinct from England therefore requires careful investigation. For this reason the terminology ‘the law applicable in relation to Wales’ is preferable to the term ‘Welsh law.’

1.2 Legal Wales

“Legal Wales” is used here to encompass the development of post devolution law making powers through a selection of key documents, reports and speeches and the Legal Wales Foundation.

“Legal Wales”

Conferences of Legal Wales
Legal Wales as an entity was established in 2001 as a cross-sectoral body consisting of representatives from the legal profession and legal academics and references to its conference reports are included.

Conferences:

1.3 Bibliographic Information on Devolution in Wales

One of the concerns regarding the law applicable in Wales is the diverse range of ways in which divergent law applicable in relation to Wales is made, as it is a combination of supranational and international law, pre-devolution law relating to England and Wales, pre-devolution law that has been amended or repealed in relation to England but not in relation to Wales, non-devolved law, laws passed by the National Assembly for Wales, common law, and precedents and statutory instruments. A Law Commission report, The Form and Accessibility of the Law Applicable in Wales, published in 2015, considered amongst other matters; the need for the law applicable in relation to Wales to be updated, the need for the law applicable in relation to Wales to be consolidated, the need for commentaries on the law applicable in relation to Wales and also a need for an appreciation that regard must be had to both the Welsh and English versions of the legislation.

The bibliography, Devolution and the New Legislative Bodies in the UK (1997 - 2014) produced by Dr. Catrin Fflur Huws and previously Aberystwyth University Library Staff and also published in Cambrian Law Review is primarily concerned with secondary sources, including articles, books and reports, which relate to the process of devolution within the United Kingdom and to the working of the various legislative/executive bodies which have been set up within the United Kingdom, namely the National Assembly for Wales, the Scottish Parliament, the Northern Ireland Assembly and the Greater London Authority.

The National Assembly for Wales and devolution in Wales: A Bibliographyis produced by the Library of the National Assembly for Wales. It is updated frequently and covers different aspects of devolution including its history, the various commissions, including the Silk Commission, and importantly a section on Law.

2. Sources of Law Applicable in Wales

This covers sources of law applicable in Wales following the Government of Wales Act noted in section 1. The National Assembly for Wales web site is the key resource for the legislative process. The website provides information on the progress of Assembly Bills, Subordinate Legislation (which includes orders, regulations, rules, schemes and also statutory guidance and local orders), Legislative Consent Motions, and Information on Legislation.

2.1 Sources of Welsh Legislation: Available Without Charge

This covers sources of law applicable in relation to Wales following the Government of Wales Act noted in section 1.

2.1.1 Legislation.gov.uk

In the public domain where no subscription is needed, the key resource for Welsh legislation is Legislation.gov.uk produced by The National Archives on behalf of HM Government. It provides authoritative versions of legislation as enacted and as amended in Welsh and English and for measures, the geographical extent, timeline of changes, explanatory notes, lists of changes since 2002 and the Order in Council approving the measure.

It describes the authoritative versions as “the original (as enacted) and revised versions of legislation on Legislation.gov.uk are published by and under the authority of the Controller of HMSO (in her capacity as The Queen's Printer of Acts of Parliament, and Government Printer of Northern Ireland) and the Queen's Printer for Scotland.” Click here for more information about Legislation.gov.uk.

The “Browse Legislation: Wales” link gives an interactive map that gives access to legislation applying exclusively or primarily to Wales. The full text, “Table of Contents and Explanatory Notes of Measures” are available from 2008 in English, Welsh, and often mixed language for the original as enacted copy. The latest revised copy is available in English but may not be completely up to date and there are warning notices to this effect. Wales Statutory Instruments are available from 1999 in English, Welsh, and often mixed language for the original as made copy. Wales Statutory Instruments are not available in their revised form here. Wales Draft Statutory Instruments are made available as necessary. The “More Resources” tab provides changes made to the revised version.

The “New Legislation” tab is the official place for new legislation and has a separate tab relating to Wales.

In more detail, as exclusively or primarily applying to Wales: Acts of the National Assembly for WalesChoose an individual Act to see a range of options, including the following tabs:

Table of Contents:

Content:

Explanatory Notes: “Text created by the Welsh Assembly Government department responsible for the subject matter of the Act to explain what the Measure sets out to achieve and to make the Measure accessible to readers who are not legally qualified. Explanatory Notes accompany all Acts of the National Assembly for Wales.”

More Resources:

Measures of the National Assembly for Wales - Choose an individual measure to see a range of options, including tabs for:

Table of Contents:

Content:

Explanatory Notes: “Text created by the Welsh Assembly Government department responsible for the subject matter of the Measure to explain what the Measure sets out to achieve and to make the Measure accessible to readers who are not legally qualified. Explanatory Notes accompany all Measures of the National Assembly for Wales”

More Resources: “Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

2.1.1.1. Wales Statutory Instruments

The full text of Welsh Statutory Instruments is available from 1999 and searchable by year and Heading (subjects such as Education, Wales; Land Transaction Tax) and in different versions/formats. Please note: Wales Statutory Instruments are not carried in their revised form on legislation.gov.uk.

Choose an individual Regulation to see a range of options, including tabs for:

Table of Contents: Lists the individual provisions of each regulation according to the version chosen through the What Version option, which helps browsing. Gives access to further options:

Content:Provides the full text each regulation with consecutive provisions on each page according to the version chosen through the What Version option. The same options are available as under the Table of Contents tab i.e. What Version, Opening Options and More Resources.

More Resources:

2.1.1.2. Law Wales

In 2015, the Welsh Government launched its Law Wales website. In light of concerns about the fact that the sources of law applicable in relation to Wales in the public domain were not being updated sufficiently frequently, and that commercial publishers were not providing access to bilingual versions of legislation made by the National Assembly for Wales, it was felt necessary to develop Law Wales as a web platform for the law applicable in relation to Wales. This evolved from a site called Welsh Law Online, which was hosted by Cardiff University Law School for a few years. The site aims to provide commentaries on the law applicable in relation to Wales and up to date bilingual versions of the law applicable in Wales and is produced in collaboration with Westlaw UK.

For a good overview see the BIALL Blog Post by Stephen Gregory.

As the Law Wales website explains, it aims to help people understand the law applicable in relation to Wales, provides information about Wales’ constitutional arrangements, law made in Wales, and provides overviews and access to key legislation by topic. There is a Welsh language site and an English language site.

The top-level topics are based on the subject areas as currently devolved:

Each sub-topic leads to:

For some sub-topics, there are “articles” with more specific detailed information. A good example is Organ donation within Health & health services. The author is Claudia Carr and it was published on 10 November 2015 and updated on 8 April 2016.

The following topics are listed under Constitution and Government:

Each of these has an Overview and some have “articles”.

2.1.2. The British and Irish Legal Information Institute - BAILII

BAILII “is a non-profit making charitable trust which is building and operating an interactive database of full text primary legal materials available without charge on the Internet. BAILII provides, by utilizing low-cost methods, a growing amount of primary and secondary legal material which can be browsed by the user and/or located by using the BAILII search engine.”[1] In a Welsh context it provides free access to Acts of Wales, Legislative Measures of Wales, and Statutory Instruments of Wales. In each case, titles can be browsed alphabetically or by year.

3. Sources of Welsh Legislation in Print

This covers sources of law applicable in relation to Wales following the Government of Wales Act noted in section 1.

Current Law Legislation Citator (London, Sweet & Maxwell, annual and cumulative) includes:

Halsbury’s Statutes: Is it in Force? (London, LexisNexis, biannual with Summer and Winter editions) and updated by the “Is it in Force” section of Halsbury’s Statutes Noter-up Service volume, includes:

4. Sources of Welsh Legislation – Commercial

This section covers sources of law applicable in relation to Wales following the Government of Wales Act noted in section 1 but for which a subscription or payment is required for access to the electronic versions.

Lawtel UK containsthe original versions of the Measures made by the National Assembly for Wales in English and Welsh.

Westlaw UK – from the Legislation tab: Choose Browse à Find Wales à Choose from:

These are all in their updated form. Use the Advanced Search for historic law or prospective law.

From the “Insight” tab, a search can be made, e.g. for “Wales,” which results in a wide range of “articles.” Then an option to “Search within Results” can be very specific, e. g. for “organ donation.”

Lexis – from the Legislation tab à Choose “Current Version” or “Historical Version” or

Choose Browse to focus immediately on Welsh law à Choose from:

5. Sources of Case Law

As Wales is not a separate legal jurisdiction, the sources of case law applicable in relation to Wales are the same as those applicable in relation to England and Wales more generally. See section 1.1. above for details specifically relating to devolution issues.

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

Click 'View More' or select 'More Resources' tab for additional information including:

6. Referencing and Citing Welsh Legal Authorities

OSCOLA (Oxford University Standard for Citation of Legal Authorities)
OSCOLA “is designed to facilitate accurate citation of authorities, legislation, and other legal materials. It is widely used in law schools and by journal and book publishers in the UK and beyond”[2] and is edited by Oxford Law faculty and an advisory board. It provides the following information relating to Wales on p. 25:

Statutory instruments of the National Assembly for Wales are cited in the same way as other statutory instruments, but the SI number is followed by a Welsh SI number, in brackets. Statutory instruments made at Westminster that apply to Wales are cited in the same way as UK statutory instruments (see sections 2.5.1 and 2.5.3).

Citing the Law: Cardiff University has produced an online tutorial to accompany OSCOLA, entitled Citing the Law, which includes a section on Welsh Legislation:

Example: Red Meat Industry (Wales) Measure 2010 (nawm 3)

Example: The Tuberculosis (Wales) Order 2011, SI 2011/692 (W 104)”[3]

7. Welsh Law Journals and Other Secondary Sources

Welsh Legal History Society Series/Journal: This was first published in 2001 and there are currently 7 published volumes:

Other secondary sources

Law Dictionaries—English/Welsh

8. Law Schools in Universities in Wales

9. Law Society Wales Office

The Law Society Wales Office, Capital Tower, Grayfriars Road, Cardiff , CF10 3AG, Telephone 09290 , 25254, Email: wales@lawsociety.org.uk, Further detail relating to the Law Society’s work in Wales is available here.



[1] BAILII in a Nutshell – About BAILII.

[2] Oxford Law: OSCOLA.

[3] Information Services, Cardiff University, Citing the Law.