CHAPTER TWO – LAW IN WALES
One of the challenges when looking at the new housing law in Wales is interpretation of uncertain provisions. There are several issues that coincide to make this difficult.
First, there is the problem of size. Wales is a smaller jurisdiction. By no means the smallest one in the UK, but still smaller than England. The PRS is also fairly small so there is a more limited pool from which cases can be drawn and there is always going to be a reluctance on the part of private landlords to incur the costs of an appeal when there is frequently an alternative route to achieve their objective, which is usually eviction. In the past, this was less of an issue in Wales as England had the same legislative provisions and so they could rely on English cases as well to clarify provisions. Of course, as Wales diversifies from England this benefit evaporates and Wales must either generate its own cases on appeal or live with the uncertainty. This problem is exacerbated in the housing sector by the small number of Welsh practitioners in this area and the significant chunks of Wales that suffer from little or no legal assistance, especially for those with little ability to pay.
The other principal difficulty with the development of Welsh law through the courts is that Wales must share a court system with England. While some Welsh legislation makes use of the Welsh tribunals, they are actually less used than those in England and are largely peripheral to the enforcement of Welsh law. There has been little movement to use the tribunals more fully, as there has been in Scotland. Therefore changes in Welsh housing law have not being reflected well in changing court procedures and some of the delays in making changes in Wales appear to have occurred as a result of difficulties in negotiations with the Ministry of Justice and HM Courts and Tribunals Service. Wales also suffers from the problem that, where it shares legislation with England, the courts can effectively make changes to Welsh legislation, or at least change how it is interpreted, where they are ruling on English cases. In one sense this is how it has always been. But where Welsh law is devolved, and it is trying to do its own thing, this becomes more of a problem.
There is also a difficulty for the Welsh Government in terms of taking part in English legislation. To join into an English piece of legislation the Senedd must pass a Legislative Consent Motion (“LCM”). LCMs are based on an October 2013 Memorandum of Understanding between UK Government and the Ministers of the various devolved bodies.1 However, in practice LCMs need to happen early in a Bill if the devolved body wants to have much say in the shaping of the Bill involved. This can be very hard where time is short. For example, the Coronavirus Act 2020 was first read in Parliament on 19 March 2020, the second reading was on 23 March 2020 and it went through its committee stages that day before having the third reading the same evening. The Senedd passed its LCM on 24 March 2020, the same day the Bill went to the House of Lords, and had many of its initial stages there. While this is an extreme example the reality is that LCMs often do not happen simply because the Senedd is brought in too late to have much hope of shaping the Bill and therefore prefers to do its own thing.
Second, there is the issue of the use of guidance. Wales has tended to use guidance far more than other UK jurisdictions. This guidance has statutory underpinning in that Welsh legislation frequently allows for Welsh ministers to issue guidance which local authorities in Wales are required to have regard to. In some cases, this guidance is absolutely required to be issued2 in other cases the guidance is optional but if it is issued it must be followed.3 This allows for a high level of flexibility as the guidance can be quickly altered. However, it also means that there is difficulty challenging the approach of ministers as the only way to do so is to pursue a judicial review, an expensive and risky undertaking.
Third, there is the difficulty of understanding what the Senedd Cymru intended. Legislation in the Welsh Assembly is often introduced with fairly brief statements from the government and is frequently subject to substantial amendment at very late stages in the Bill process. As such, there has tended to be little oversight of the final versions of Bills before they are passed into law. This has been exacerbated by a tendency to place a great deal of power into the hands of Welsh Ministers by giving them extensive powers to pass statutory instruments which dictate the structure of key pieces of legislation. As an extreme example the consequential repeals and amendments relating to the RHWA are not on the face of the Act and are set out in a Statutory Instrument. This has led to considerable uncertainty as to the scope of the RHWA. Additionally, the Senedd has a surprisingly limited degree of public debate about the text of Bills from which their intention can be divined. This is exacerbated by the partial use of proportional representation which encourages members to display strong party loyalty in order to protect their place on the party list element of the election process. The same problem occurs in the committee stages of Bills where the Welsh government is not often required to fully explain its intent and privately agrees with Members to amend Bills so that committee reports have no substantive discussion or criticism in them of the Bill as the points have already been resolved. While this is undoubtedly good for elected representatives it is difficult for the courts who are seeking to understand what it was that the Senedd might truly might have intended by a particular provision.4
Finally, the structure of Welsh legislation is itself problematic. The Welsh government has adopted a drafting style which is common within the EU by trying to set out in its Bills what each forthcoming section is trying to achieve. This makes sense from the perspective of readability in that it is not necessary to read every provision to get a good idea of what the relevant legislation is trying to do and where each of those objectives is made flesh. However, from the point of view of the courts this creates a very serious issue. Should overview sections be interpreted as merely setting out what is to come in the sections to follow? If so, this make statutory interpretation harder as these sections are, from a legal perspective, nugatory, and the courts dislike assuming that a law-making body will place provisions in legislation that are not intended to have a direct effect themselves.5 If these sections have a greater purpose, then to what extent are they free-standing on their own or are they primarily there to provide context to other sections and help with their interpretation? The Court of Appeal has held, in the only case that has come before it, that the section was intended to be a free-standing provision and was enforceable on its own merits.6 Whether this would be the case every time would probably depend on the wording of the section that was being considered and the context. The Welsh Government has sought to tackle the issue by making clear in its guidance on legislative drafting that overview sections should make very clear whether they are intended as mere summaries or to have direct effect in themselves.7
1Available at https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/316157/MoU_between_the_UK_and_the_ Devolved_Administrations.pdf.
2For example, s40, Housing (Wales) Act 2014.
3For example, s15, Renting Homes (Fees etc.) (Wales) Act 2019.
4Some comment on these issues can be found in Jarvis v Evans  EWCA Civ 854 @ 42(vi).
5See Walker v Centaur Clothes Group  2 All ER 589 @ 595
6Jarvis v Evans  EWCA Civ 854.
7Writing laws for Wales: guidance on drafting legislation, para 2.4. Available at https://gov.wales/writing-laws-for-wales-guidance-on-drafting-legislation.