An Administrative Law Code for Wales: Benefits to Reap and Obstacles to Overcome

An Administrative Law Code for Wales: Benefits to Reap and Obstacles to Overcome Abstract Wales is about to undergo a radical change to the legislative process. In line with the recommendations of the Law Commission in the report Form and Accessibility of the Law Applicable in Wales, Wales will soon see its first modern legal codes. A decision will need to be made on how the law in Wales will be codified and in what areas. This article will seek to provoke discussion and argue that a code bringing together the principles of administrative law should in the near future form part of the codification programme. The article will propose a model of codification that will incorporate current principles of administrative law and supplement those principles for the benefit of the principle of good administrative justice. The article will also discuss the extent to which the National Assembly has legislative competence to make an administrative law code for Wales. Finally, the article will discuss the current common law nature of administrative law in Wales and argue that codification would bring clarity and certainty without removing the safety and flexibility of the common law. INTRODUCTION Wales is about to undergo a radical change to the legislative process. In June 2016, the Law Commission presented the report Form and Accessibility of the Law Applicable in Wales (‘the Law Commission report’).1 In the Law Commission report, among other recommendations, the Law Commission recommended the Welsh Government and the National Assembly for Wales should consider codifying the law in certain devolved subject areas. The Welsh Government in its response to the report agreed ‘that a sustained, long term programme of consolidation and codification of Welsh law would deliver societal and economic benefits and is necessary to ensure that the laws of Wales are easily accessible’.2 Since that date, a number of Welsh Government reports have identified the benefits of and desire for codification and have undertaken to implement pilots and consultations on codification.3 It appears very likely that Wales will soon see its first modern legal codes.4 Codification of the law in Wales will be a huge undertaking and, for practical as well as competence reasons, could not be done in one single code representing all the laws applicable in Wales. A decision will need to be made on how the law will be codified and in what areas. The Law Commission report recommended ‘that those areas in which the law is in most need of being brought together in Assembly legislation should be identified and the process of bringing the legislation together should be undertaken’.5 The Law Commission report, at chapter 7, identifies education, social care, planning, environment, and housing as areas that would benefit from codification. These areas were also identified as key areas for codification by the Justice Stakeholder Group commissioned by the National Assembly for Wales.6 While these areas are, by consensus, the first areas that will be considered for codification, this article will seek to provoke discussion and argue that a code bringing together the principles of administrative law should in the near future also fall for consideration. WHAT WILL CODIFICATION IN WALES LOOK LIKE? Around the world, there are a number of different forms of codification practised.7 The Law Commission report was quite specific in what it envisaged: A code will be an Act of the National Assembly which should stand upon enactment and in the future as the only statement of primary legislation on a given topic. The process of codification encompasses production of an Act of this kind and the labelling of an appropriately comprehensive Act or Bill as a code.8 … We recommend that the ultimate goal of the Welsh Government and the National Assembly should be the organisation of primary legislation into a series of codes dealing comprehensively with particular areas of devolved law.9 … [W]e consider that, where appropriate, judge-made rules… may usefully be incorporated into a code. This would be done on the basis of a careful assessment of the merits of doing so case by case. We remain of the view that codification should not fundamentally alter the relationship between statute law and judge-made law.10 As the Welsh Government has accepted the Law Commission’s recommendations, it is likely that codification of the devolved areas will, largely, follow this model, although Dylan Hughes, First Legislative Counsel, has suggested that statutory guidance may also be incorporated into the code.11 A code will be the sole authority for the devolved area of law and will incorporate statute law, potentially statutory guidance, and selected principles outlined in case law. Other case law, presumably where the decision is case specific, will not be incorporated into the code but may assist in clarifying the principles of the code. An administrative law code for Wales (‘ALCW’) following this format would have a number of benefits over the present system. ADVANTAGES OF CODIFICATION FOR WALES There are a number of advantages to codification in general. A key and recurring criticism of the law, as it is in Wales, is that it is not easy to understand what the law is on any given topic.12 This is a direct result of the diverging nature of the law in England and the law in Wales and it ‘is the legacy of an incremental approach to devolution’.13 A single legal code that details the entire law on a topic in Wales would provide that greater clarity and thus it would ensure greater access to justice by allowing the people of Wales to easily access the law. In response to the Law Commission’s consultation, the Wales Governance Centre backed the idea of codification of the law in Wales for these very reasons: [C]odification as by far the most effective and innovative way to radically improve both the substance and the accessibility of the law in Wales.14 In his consultation response, the then Lord Chief Justice of England and Wales, Lord Thomas of Cwmgiedd, also expressed support for codification. He suggested that codified legislation would be easier to understand: I have for a long time spoken about the drawbacks of the Westminster model of drafting legislation and its inflexibility to allow the user to easily appraise changes.15 It can be argued that the diverging nature of the law in Wales, moving as it is in a different direction from the law in England in many respects,16 brings a pressing need for more accessible and clearer law in Wales. As observed by Professor R. Gwynedd Parry: Although having two legislatures making laws for the same territory is not of itself unusual, it does pose challenges in terms of clarity and accessibility. The people need to know the law that applies to them. A unified body of Welsh law, the law that applies in Wales, regardless of where it is made, must be clear and accessible to the public. The Law Commission has recognised the challenges to accessibility and clarity which the current position poses, and made proposals based on the fundamental tenet, in the context of legislation, that accessibility is central to the rule of law. It made proposals for the codification in new National Assembly legislation of legislation whose subject matter is within the legislative competence of the National Assembly for Wales and which is currently dispersed in pieces of legislation of the United Kingdom Parliament and/or the National Assembly.17 Improved access to justice and clarity must be a goal for any legislature. For Wales, as was noted by the Wales Governance Centre in the report Justice in Wales: Principles, Progress and Next Steps: [C]larity and efficiency are important principles…but a more rounded approach is required, one in which a full set of guiding principles is articulated and promoted.18 AN ADMINISTRATIVE LAW CODE FOR WALES: WHAT TO INCLUDE Any legal codes for Wales must be written with a view to clarifying the principles of law in Wales. They must also ensure that the principles are drawn together into the single code, thus allowing a single point of reference for public bodies and those with legal rights in Wales. Administrative justice in Wales would benefit from codification of administrative law principles in Wales. To examine why it is efficacious to combine that question with a discussion of what would be included in an ALCW. A four-pronged approach is necessary to ensure that the code incorporates current principles, draws together disparate principles, advances the principle of good administrative justice, and outlines clear redress mechanisms (see the below sections for details). The Traditional Principles Any ALCW should start with the traditional common law principles of administrative law and give them the clarity of being outlined in a single place. At present, the traditional principles of administrative law can be listed under broad headings. In essence, under the traditional common law principles of administrative law, a public body must act in a way that is19: Lawful; Reasonable; Procedurally proper; and Human rights compliant. These broad principles are long-standing principles, as identified by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service,20 although the latter was made a key component of administrative law when section 6(1) of the Human Rights Act 1998 was enacted which brought certain articles of the European Convention on Human Rights 1950 into the law of England and Wales.21 These broad headings can, in turn, be sub-divided. For example, an act or omission by a public body may be vitiated by procedural impropriety where22: The public body failed to observe procedural rules23; The public body has fettered its discretion24; The public body failed to give adequate reasons where reasons are required25; or The public body failed to consult properly where a requirement to consult existed.26 As can be observed from the perspective of the duty to act in a procedurally proper manner, the common law principles, while summarized above, are disparate and relatively difficult to draw together for a lawyer, let alone a lay person attempting to understand their administrative law rights. The broad categories could form the basis for an ALCW with subdivisions within the code to reflect and give more substance to those subdivisions. By properly outlining the traditional administrative law principles in a code, administrative law rights would be understandable and access to justice would be greatly improved. Consolidating and Enhancing Principles The National Assembly would be able to add to the traditional administrative law duties by incorporating and clarifying other duties that have been brought in by way of legislation. An example of an appropriate area in which this could occur would be the sustainable development and well-being duties that have been brought into the law in Wales under the Well-being of Future Generations (Wales) Act 2015 (‘the 2015 Act’).27 The 2015 Act is seminal public law legislation. In enacting it, the National Assembly became ‘the first legislature in the world to enshrine in law a duty, falling on public bodies, to safeguard the well-being of future generations’.28 Under sections 3 and 5 of the 2015 Act, public bodies in Wales29 must carry out sustainable development. In fulfilling this duty, they must set and publish well-being objectives.30 These are objectives relating to how the public body intends to contribute to the achievement of the well-being goals, which are set out in section 4 of the 2015 Act. Public bodies must set well-being objectives that seek to maximize their contribution to the well-being goals. In addition, they must take all reasonable steps, in exercising their functions, to meet their objectives.31 The well-being goals are outlined in a table that appears at section 4 of the 2015 Act: Goal Description of the goal A prosperous Wales. An innovative, productive and low carbon society which recognises the limits of the global environment and therefore uses resources efficiently and proportionately (including acting on climate change); and which develops a skilled and well-educated population in an economy which generates wealth and provides employment opportunities, allowing people to take advantage of the wealth generated through securing decent work. A resilient Wales. A nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change). A healthier Wales. A society in which people’s physical and mental well-being is maximised and in which choices and behaviours that benefit future health are understood. A more equal Wales. A society that enables people to fulfil their potential no matter what their background or circumstances (including their socio economic background and circumstances). A Wales of cohesive communities. Attractive, viable, safe and well-connected communities. A Wales of vibrant culture and thriving Welsh language. A society that promotes and protects culture, heritage and the Welsh language, and which encourages people to participate in the arts, and sports and recreation. A globally responsible Wales. A nation which, when doing anything to improve the economic, social, environmental and cultural well-being of Wales, takes account of whether doing such a thing may make a positive contribution to global well-being. Goal Description of the goal A prosperous Wales. An innovative, productive and low carbon society which recognises the limits of the global environment and therefore uses resources efficiently and proportionately (including acting on climate change); and which develops a skilled and well-educated population in an economy which generates wealth and provides employment opportunities, allowing people to take advantage of the wealth generated through securing decent work. A resilient Wales. A nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change). A healthier Wales. A society in which people’s physical and mental well-being is maximised and in which choices and behaviours that benefit future health are understood. A more equal Wales. A society that enables people to fulfil their potential no matter what their background or circumstances (including their socio economic background and circumstances). A Wales of cohesive communities. Attractive, viable, safe and well-connected communities. A Wales of vibrant culture and thriving Welsh language. A society that promotes and protects culture, heritage and the Welsh language, and which encourages people to participate in the arts, and sports and recreation. A globally responsible Wales. A nation which, when doing anything to improve the economic, social, environmental and cultural well-being of Wales, takes account of whether doing such a thing may make a positive contribution to global well-being. View Large Goal Description of the goal A prosperous Wales. An innovative, productive and low carbon society which recognises the limits of the global environment and therefore uses resources efficiently and proportionately (including acting on climate change); and which develops a skilled and well-educated population in an economy which generates wealth and provides employment opportunities, allowing people to take advantage of the wealth generated through securing decent work. A resilient Wales. A nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change). A healthier Wales. A society in which people’s physical and mental well-being is maximised and in which choices and behaviours that benefit future health are understood. A more equal Wales. A society that enables people to fulfil their potential no matter what their background or circumstances (including their socio economic background and circumstances). A Wales of cohesive communities. Attractive, viable, safe and well-connected communities. A Wales of vibrant culture and thriving Welsh language. A society that promotes and protects culture, heritage and the Welsh language, and which encourages people to participate in the arts, and sports and recreation. A globally responsible Wales. A nation which, when doing anything to improve the economic, social, environmental and cultural well-being of Wales, takes account of whether doing such a thing may make a positive contribution to global well-being. Goal Description of the goal A prosperous Wales. An innovative, productive and low carbon society which recognises the limits of the global environment and therefore uses resources efficiently and proportionately (including acting on climate change); and which develops a skilled and well-educated population in an economy which generates wealth and provides employment opportunities, allowing people to take advantage of the wealth generated through securing decent work. A resilient Wales. A nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change). A healthier Wales. A society in which people’s physical and mental well-being is maximised and in which choices and behaviours that benefit future health are understood. A more equal Wales. A society that enables people to fulfil their potential no matter what their background or circumstances (including their socio economic background and circumstances). A Wales of cohesive communities. Attractive, viable, safe and well-connected communities. A Wales of vibrant culture and thriving Welsh language. A society that promotes and protects culture, heritage and the Welsh language, and which encourages people to participate in the arts, and sports and recreation. A globally responsible Wales. A nation which, when doing anything to improve the economic, social, environmental and cultural well-being of Wales, takes account of whether doing such a thing may make a positive contribution to global well-being. View Large In essence, there is a positive duty on Welsh public bodies, which can properly be described as a principle of administrative law, to act in a way that maximizes the well-being goals. If this duty was incorporated into an administrative law code then it would sit with equal standing alongside the common law administrative law principles and, it is submitted, would do much to further the goals. It may even be argued that to truly ‘embed sustainable development as the “central organising principle” of public governance in Wales’,32 then the sustainability principle needs to be approached as an equal to the traditional public law principles. In the event that sections 2–5 of the 2015 Act were incorporated into an administrative law code for Wales then failure to set objectives, setting objectives that did not comply with the goals, failure to take reasonable steps to meet the objectives, or failure to act in accordance with the objectives, would be clearly identifiable, challengeable decisions/failures. Such a failure/decision would be of equal significance to a failure to conduct a lawful consultation or a failure to abide by a legitimate expectation, which under the 2015 Act it is arguably not.33 Further Principles The aim of an ALCW cannot simply be to clarify and consolidate administrative law in Wales. It must ‘promote Wales as a progressive nation in the development of its administrative justice system, and as a nation demonstrating the highest commitment to standards of public decision-making, human rights, and the protection of vulnerable groups within society’.34 Codification of the principles of administrative law for Wales can do more than draw together the current principles. Wales can expand upon the current, disparate, common, and statute law principles with further principles outlined in the code as it deems appropriate. An appropriate way to progress administrative justice (which is a broader term than administrative law) in Wales in the form of additional provisions in a code would be the incorporation of the principles advocated by the Administrative Justice and Tribunals Council and modified with specific regards to Wales in the Bangor University Report, Understanding Administrative Justice in Wales (‘the Bangor report’).35 The Bangor report suggests Wales would benefit from adopting administrative justice principles that would require public bodies to36: Make citizens and their rights and needs central, treating them with fairness and respect at all times. Ensure that decisions are based on appropriate procedures, and that people have a right to challenge such decisions including seeking redress using procedures that are accessible, independent, impartial, open and appropriate for the matter involved. Ensure people are treated as partners in the resolution of their disputes, keeping them fully informed and enabling them to resolve their problems as quickly and comprehensively as possible. Ensure that decisions are well-reasoned, lawful and adequately democratic and that outcomes are communicated in an appropriate and timely manner. Ensure that decisions are coherent, consistent and of sufficient clarity. The system itself must also be coherent from the citizen perspective and ensure that these principles of administrative justice are applied consistently throughout. Work proportionately, efficiently and effectively. Adopt the highest standards of integrity, public administration and good governance, and be designed to learn from experience and continuously improve, including fostering communication between various decision-makers and redress mechanisms. Where possible, provide an opportunity for informal dispute resolution, which may include online dispute resolution where appropriate. Minimise any disadvantages to unrepresented parties. Ensure that decisions are taken by those with appropriate expertise and encourage accurate and accountable decision-making. Ensure respect for human rights, equality, sustainability and the protection of vulnerable groups including children and older people. Ensure appropriate respect for the Welsh language including compliance with Welsh Language Standards where applicable. The last two principles may not be needed in an administrative law code as they would be covered by inclusion of the already existing common law and statutory principles, but they have been included in the list above as the code may wish to go further than the current law. The Bangor report notes the potential issues with making general statements such as the above, as general statements may lack clarity and invite conflict.37 The Bangor report concludes that: Properly drafted these could help move Wales away from a seemingly common adherence to the idea that administrative justice aligns primarily with administrative law (and highly legalistic values). In order for an ALCW to be a single code on administrative law for Wales, it must include those administrative law principles that are already in place. In the context of codification, it is submitted that alignment of the principles of administrative law with these further principles would only increase access to justice and it would do so in a socially progressive way. Incorporation of the Bangor report principles into an ALCW, alongside the traditional common law and statutory principles, would clarify administrative law in Wales and provide better access to justice. It would also lead the way in terms of ensuring that public bodies approach administrative justice in the most user-friendly fashion and ‘shows considerable commitment to social justice and individual rights’.38 Redress Mechanisms One of the major criticisms of the Well-being of Future Generations (Wales) Act 2015 is that it does not clearly outline what, if any, redress mechanisms exist if public bodies are failing to comply with their sustainability and well-being duties.39 The same criticism can be directed at other decisions of public bodies where there are methods of redress in law but those methods of redress are not clear. The exact nature of any redress mechanisms is too large a topic to cover in detail in this article. It is sufficient to note that any single code on administrative law must incorporate a procedural section to outline how non-compliance with the code can be enforced.40 The method of redress may be by way of an Ombudsman,41 a specific tribunal, a number of tribunals,42 by way of the Administrative Court in Wales,43 or indeed a combination of these procedures, but without clearly defined redress mechanisms and procedures, the principles are either not enforceable or difficult to enforce. After all, the law is only as good as it is enforceable. OVERCOMING THE DISADVANTAGES There are arguments against an administrative law code for Wales. The two principle arguments are that such a code would be less desirable than the common law system of administrative law currently in place and that, in any event, the National Assembly would lack legislative competence to introduce such a code. These are proper criticisms, but they should be seen as challenges to overcome rather than immovable obstacles. Common Law Protections Dr Sarah Nason, who writes extensively and excellently on administrative justice in Wales, has said that the codification of common law principles may ‘stultify progressive development’ of those principles.44 It may well be that an ALCW would slow the development of common law administrative law principles, but the first point to make to counter this is that development of clear and express principles must be favourable. As Paul Bowen QC noted (albeit in reference to human rights principles): Even where common law rights have been established for many years, the absence of express words means that these rights are less certain in scope, their underlying justification often unclear or the subject of conflicting judgments and therefore more easily displaced or qualified by statute or other legal norms.45 The second point to make is that common law and statute law (the latter as the code would be) can and do exist side by side. Two examples can be examined to show that the implantation of a statutory scheme does not mean that common law rights are eroded and thus the implementation of an ALCW would not remove the protections of the common law principles of administrative law. The two examples come from human rights law and family law. On 2 October 2000, section 6(1) of the Human Rights Act 1998 (‘the 1998 Act’) incorporated a number of articles of the European Convention of Human Rights 1950 into the law of England and Wales.46 The 1998 Act brought clarity and structure to the human rights regime in the United Kingdom and brought human rights values in the United Kingdom into line with the human rights values of Europe. When the Conservative Government suggested that the 1998 Act should be repealed,47 many feared that this would mean the removal of human rights protections within the United Kingdom. A number of commentators, however, have asserted that the repeal of the Human Rights Act 1998 would not reduce or diminish human rights protections in the United Kingdom because those rights are protected in common law.48 A statutory code would not remove common law rights. However, a statutory ALCW would take precedence over common law and the Courts would be unlikely to rely on common law rights to act in a manner contrary to clearly articulated principles in the code, but the common law principles would remain in place to cover those situations where there is no statutory code covering the point.49 The extent to which it is desirable that the 1998 Act is repealed and how effective UK common law rights would be compared to maintaining the European system of common human rights values is a matter of debate,50 but for the purposes of this article, the key point is that the common law administrative law principles would still exist and could be relied on if a scenario arose whereby the ALCW was found to be deficient. For a precedent for how this would work in practice we can look to the Family Court. On 22 April 2014, the single Family Court was created.51 Since the creation of the single Family Court, the majority of family law matters are dealt with in the Family Court, including the majority of those statutory matters that were previously assigned to the Family Division of the High Court.52 However, the Family Division of the High Court has not been abolished. It is still needed as the Family Division of the High Court retains an inherent jurisdiction to deal with common law matters that arise in family proceedings.53 In the event that an ALCW is implemented, the code would not (and could not) entirely oust the common law jurisdiction of the Administrative Court. Where the Administrative Court determines that a common law administrative law principle exists and it is not sufficiently outlined or it is not outlined at all in the code, then the judge may declare as such in a judgment. The judgment would still have common law force, and the National Assembly would then consider whether the point would need to be incorporated into or clarified in the code, as was envisaged by the Law Commission in the Law Commission Report.54 Common law arguments would be rare and would become increasingly rare as the code developed, but retention of the inherent jurisdiction would act as a backstop for administrative law rights and would help to finesse the code. Legislative Competence In the article ‘The Administrative Court and Administrative Law in Wales and Comparative Perspectives’,55 Nason and Gardner considered that: [T]he development of a general administrative procedure Act may not be possible at present given the Assembly’s current legislative competence and the continued existence of a fused England and Wales legal jurisdiction.56 That position must, generally, be correct. It would be the National Assembly that would enact and update the code by way of its powers to make primary legislation (an ‘Act of the Assembly’) under section 107(1) of the Government of Wales Act 2006 (‘the 2006 Act’). However, the National Assembly may only make an Act of the Assembly where it has legislative competence to do so.57 At the time of writing the National Assembly operates under a conferred powers model, but this will become a reserved powers model when section 3 of the Wales Act 2017 comes into force. At present, the Assembly only has competence to legislate if the provisions of the Act relate to one or more of the devolved subjects listed under the 21 headings in Schedule 7 to the 2006 Act. An Act of the Assembly must also comply with the conditions outlined in section 108 of the 2006 Act and the general restrictions in Parts 2 and 3 of Schedule 7.58 Under the reserved power model, Acts of the Assembly will still have to be within legislative competence, but to do so, their provisions must not relate to any matter listed as reserved to the UK Parliament as set out in Schedule 7A of the 2006 Act. Furthermore, an Act of the Assembly will also have to comply with the conditions outlined in section 108A and schedule 7B of the 2006 Act. To remain within legislative competence, an administrative law code for Wales would need to ensure that its provisions did not stray into areas that are outside of the competence of the Assembly. The simplest way to ensure that an administrative law code of Wales remains within legislative competence is to ensure that it only applies to bodies that are within legislative competence. As any ALCW would be enacted after the Wales Act 2017 is in force, the code should include a provision that it only applies to devolved Welsh authorities as defined in statute, as replicated in the code. The code would replicate the test outlined in section 157A(1)–(3) of the 2006 Act,59 which provides: (1) In this Act ‘devolved Welsh authority’ means— (a) a public authority that meets the conditions in subsection (2), (b) a public authority that is specified, or is of a description specified, in Schedule 9A (whether or not it meets those conditions), or (c) the governing body of an institution within the higher education sector (within the meaning of section 91(5) of the Further and Higher Education Act 1992) whose activities are carried on, or principally carried on, in Wales. (2) A public authority meets the conditions in this section if its functions— (a) are exercisable only in relation to Wales, and (b) are wholly or mainly functions that do not relate to reserved matters. (3) In determining for the purposes of this section whether functions of a public authority are exercisable only in relation to Wales, no account is taken of any function that— (a) is exercisable otherwise than in relation to Wales, and (b) could (apart from this paragraph) be conferred or imposed by provision falling within the Assembly’s legislative competence (by virtue of section 108A(3)). Schedule 9A of the 2006 Act contains a (non-exhaustive) list of public bodies (such as the Welsh Ministers and Welsh Local Authorities) which are automatically considered to be a devolved Welsh Authority and which should also be incorporated into the code. By ensuring that the code only applies to bodies themselves confined by legislative competence, the principles of the code cannot be said to have any impact outside of legislative competence. As Nason and Gardner note,60 judicial review of administrative action will remain a reserved matter under the Wales Act 2017,61 which would prevent any administrative law code from circumventing the common law judicial review principles. However, as illustrated above, an ALCW in the form argued for by this article would not circumvent the common law judicial review principles or prevent access to the Administrative Court by way of judicial review. The judicial review procedure would still exist to challenge the decision of UK wide public bodies acting in Wales (such as the Secretary of State for the Home Department when making immigration decisions) and it would still act as the common law backstop. The ALCW would complement the judicial review procedure in a way that would benefit the people of Wales by establishing clear administrative justice principles for devolved Welsh authorities and it would increase access to justice when seeking to challenge the decisions of those Welsh devolved authorities. Going Further: The Code and Non-Welsh Devolved Authorities In general, both the reserved power and conferred power settlements prevent the Assembly for legislating outside of the terms outlined above. It should, however, be noted that the Assembly can legislate for public authorities which are not devolved Welsh authorities with the consent of (generally) the Minister of the Crown.62 Furthermore, the Assembly can restate the law even in areas that are not devolved.63 The ability to legislate in these circumstances may be useful in drafting an ALCW as it would allow the code to include all of the relevant provisions regardless of whether they are within the Assembly’s competence, and one could for example provide that in interpreting such provisions, they were to be kept in alignment with decisions of the courts relating to the rules and principles in question. CONCLUSION If there is to be an ALCW, it must come sooner rather than later. At the Legal Wales Conference in Cardiff in October 2013, the then Lord Chief Justice Lord Thomas of Cwmgiedd suggested that Wales should look towards a codified form of legislation now: In Wales, there is a huge advantage that Welsh legislation has but a short history. There is no reason, therefore, why it cannot develop its own innovative style…Furthermore, Wales can begin its own sensible organisation of Welsh law into a Code with chapters into which new laws can be inserted and old laws amended, much along the lines of what is done in most states. Westminster is burdened by history. It is therefore a model that does not have to be followed.64 In line with the comments of Lord Thomas, an ALCW should be considered sooner rather than later. Implementation as soon as possible would mean a code that benefits from avoiding the historical problems that dog the law of England and Wales. Such a code could act as a code for administrative decision-making in Wales in the devolved subject areas for welsh devolved authorities. This would have the advantage of improving access to justice and administrative justice in Wales in those devolved areas. It would also, perhaps even more importantly, allow the Welsh Government and National Assembly to iron out any issues with a codified administrative law before (and if) a separate legal jurisdiction for Wales is created. That way a tested system would already exist that could be built on and modified under the new jurisdiction. The final word on the subject should be given to the former Counsel for General for Wales, Mick Antoniw AM in his well-articulated statement for the National Assembly, which as this article has shown, applies as much to principles of administrative law as any other area of law: As a young legislature with relatively new powers to legislate, we in the National Assembly for Wales have a unique opportunity to bring order to the laws that we have inherited and to take a different approach to making new laws. This approach would put the citizen—the ultimate users of legislation—first, by ensuring our laws are clear, accessible and well kept. As Aristotle said, ‘Law is order, and good law is good order.’ Our opportunity is to lead the way in the United Kingdom by starting on a path of consolidation and codification of our law. Codes of Welsh law could underpin our legal jurisdiction and more generally form part of the foundations of our nation. Concerns have been raised for many years about the complexity of the law in the United Kingdom and the disorganised state of our vast and sprawling statute book…Codifying our laws is something that has never been done before in the UK and I can only speculate as to why this is the case, but I suspect it is because of the size and cost of the task, and perhaps because of a lack of political will due to other more high-profile options taking priority. So, making this a priority is perhaps more difficult than ever, given the reductions in budgets that we face. But it could be said that bringing order to the law would be more than worthwhile, given the social benefits it would bring to the people of Wales, whose access to justice is more constrained than ever before in the light of cuts to legal aid and the closure of courts. There would also be efficiency gains across all sectors, bringing financial benefits to the economy and more clarity to our highly complex system of government. These are also issues that should be of concern to us as a responsible and maturing legislature… I believe that we have a responsibility to deal with a problem that is not of our making, but we have also an opportunity to lead the way.65 Footnotes 1 Law Commission Report No 366 (Parliamentary Printers, London, HC 469-I, 29 June 2016). 2 See https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/06/2017-07-19-Law-Commission-Final-Response.pdf. 3 See Justice Stakeholder Group Law and Justice in Wales: Some Issues for the Next Assembly (March 2016); Welsh Government Report on the Implementation of Law Commission Proposals (February 2017); Welsh Government Progress Update on the Work of the Justice Stakeholder Group (April 2017). 4 For a discussion of the medieval laws of Wales made during the reign of Hywel Dda, which could arguably be described as codes, see T Watkin The Legal History of Wales (2nd edn University of Wales Press Cardiff 2012). 5 Law Com No 366, para. 2.76. 6 See Justice Stakeholder Group Law and Justice in Wales: Some Issues for the Next Assembly (March 2016) para. 30. 7 For analysis of the systems in Australia and the Netherlands compared to Wales, see S Nason and D Gardner ‘The Administrative Court and Administrative Law in Wales and Comparative Perspectives’ in S Nason (ed) Administrative Justice in Wales and Comparative Perspectives (University of Wales Press Cardiff 2017). 8 Law Com No 366, para. 2.13. 9 Ibid, para. 2.55. 10 Ibid, para. 2.63. 11 D Hughes Developing Codes of Welsh Law (Legal Wales Conference, Swansea University 15 September 2017). 12 Good examples of this in a number of areas of law can be found in ch. 5 of Form and Accessibility of the Law Applicable in Wales (2015) Law Commission Consultation Paper No 223. The issue is also discussed in D Hughes and H Davies ‘Accessible Bilingual Legislation for Wales’ [2012] Statute L Rev 33, 103 at 113 onwards. 13 Law Commission Consultation Paper No 223, para. 5.2. 14 Law Com No 366, para. 2.4. 15 Ibid, para. 2.39. 16 As an illustrative example, compare and contrast the Care Act 2014 in England and the Social Services and Well-being (Wales) Act 2014 in Wales. 17 RG Parry ‘Is Breaking Up Hard to Do? The Case for a Separate Welsh Jurisdiction’ [2017] Irish Jurist 57, 61–93 at 74. 18 H Pritchard Justice in Wales: Principles, Progress and Next Steps (June 2016) para. 2.1, http://sites.cardiff.ac.uk/wgc/2016/09/12/justice-in-wales-new-report-sets-out-reform-proposals/. 19 For a discussion of the principles of administrative law as they apply in Wales, see D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) ch. 3. More generally, see HWR Wade and CF Forsyth Administrative Law (11th edn Oxford University Press Oxford 2014) and H Woolf et al. De Smith’s Judicial Review (7th edn Sweet & Maxwell UK 2013). 20 [1985] AC 374. 21 Brought into force on 2 October 2000 by Art. 2 of the Human Rights Act 1998 (Commencement No 2) Order 2000 (SI 2000 No 1851). 22 See D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) at ch. 3 where the subdivisions are discussed for all four broad categories. The following list is a list of common law examples of procedural unfairness. As it is based in common law, it cannot be said to be an exhaustive list. 23 See D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) at 3–21 or Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at 410 and Lloyd v. McMahon [1987] AC 625 at 702–3. 24 See D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) at 3–22 or British Oxygen Co Ltd v. Minister of Technology [1971] AC 610. 25 See D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) at 3–23 or Oakley v. South Cambridgeshire District Council [2017] 2 P. & C.R. 4. 26 See D Gardner, Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) at 3–24 or R v. North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 and R (Moseley) v. Haringey London Borough Council [2014] 1 WLR 3947. 27 anaw. 2. 28 H Davies ‘The Well-being of Future Generations (Wales) Act 2015: Duties or Aspirations?’ [2016] Env L Rev 18, 41–56 at 41. 29 Which are defined in section 6 Well-being of Future Generations (Wales) Act 2015. 30 Ibid, section 3(2)(a). 31 Ibid, section 3(2)(b). 32 H Davies ‘The Well-being of Future Generations (Wales) Act 2015: Duties or Aspirations?’ [2016] Env L Rev 18, 41–56 at 44, in turn referring to phrase used by the Welsh Government in One Wales, One Planet at 9. http://gov.wales/docs/desh/publications/090521susdev1wales1planeten.pdf. 33 The extent to which the 2015 Act creates enforceable duties as opposed to aspirational duties is discussed in H Davies H Davies ‘The Well-being of Future Generations (Wales) Act 2015: Duties or Aspirations?’ [2016] Env L Rev 18, 41–56. If the principles of the 2015 Act were enshrined in an administrative law code for Wales, then there would be no debate and the duties would certainly be enforceable. 34 S Nason ‘Understanding Administrative Justice in Wales: Full Report Including Executive Summary’ (November 2015) para. 2.49. http://adminjustice2015.bangor.ac.uk/documents/full-report.pdf. 35 Ibid. The conclusions of the Bangor report were supported by the Wales Governance Centre, see H Pritchard Justice in Wales: Principles, Progress and Next Steps (June 2016) para. 2.1, http://sites.cardiff.ac.uk/wgc/2016/09/12/justice-in-wales- new-report-sets-out-reform-proposals/. 36 S Nason ‘Understanding Administrative Justice in Wales: Full Report Including Executive Summary’ (November 2015) para. 2.49. http://adminjustice2015.bangor.ac.uk/documents/full-report.pdf. 37 Ibid, para. 2.48. 38 Ibid. 39 H Davies ‘The Well-being of Future Generations (Wales) Act 2015: Duties or Aspirations?’ [2016] Env L Rev 18, 41–56 at 52–53. 40 By way of analogy, see the General Administrative Law Act 1994 in the Netherlands that includes rules for decisions made by administrative authorities and creates a general right of appeal to an administrative court. See S Nason and D Gardner ‘The Administrative Court and Administrative Law in Wales and Comparative Perspectives’ in S Nason (ed) Administrative Justice in Wales and Comparative Perspectives (University of Wales Press Cardiff 2017) at 252–258 for a discussion of the 1994 Act. 41 The procedure outlined under the Public Services Ombudsman (Wales) Act 2005 could be incorporated into the code. 42 See D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) paras 1–24 to 1–27 or S Nason and D Gardner, ‘The Administrative Court and Administrative Law in Wales and Comparative Perspectives’ in S Nason (ed) Administrative Justice in Wales and Comparative Perspectives (University of Wales Press Cardiff 2017) at 251–252, for information on the Tribunals that sit in England and Wales and the Wales only Tribunals. 43 Civil Procedure Rules Part 54 covering judicial review or Civil Procedure Rules Practice Direction 52D para. 27A covering Welsh Appeals in the Administrative Court may be starting points for any procedure in the code. 44 Law Com No 366, para. 2.42. 45 See P Bowen ‘Does the Renaissance of Common Law Rights Mean that the Human Rights Act 1998 Is Now Unnecessary?’ [2016] EHRLR 4, 361–77 at 366. 46 See n 20 above. 47 Protecting Human Rights in the United Kingdom: The Conservative Party’s Proposals for Changing Britain’s Human Rights Laws (2014). 48 See, e.g., M Elliott ‘Beyond the European Convention: Human Rights and the Common Law’ [2015] CLP 68, 85 and M Tugendhat Liberty Intact: Human Rights in English Law (Oxford University Press Oxford 2016). 49 Parliamentary sovereignty was the reason why the Divisional Court and Court of Appeal in R. (on the application of Nicklinson) v. Ministry of Justice [2012] EWHC 2381 (Admin) refused to read in a defence of necessity to the criminal offences of murder and assisted suicide to give effect to common law rights of autonomy and dignity. See particularly Toulson LJ’s statement at para. 84 that to do so would ‘usurp the role of Parliament’. 50 P Bowen ‘Does the Renaissance of Common Law Rights Mean that the Human Rights Act 1998 Is Now Unnecessary?’ [2016] EHRLR 4, 361–77. 51 See section 17(3) Crime and Courts Act 2013 implemented by Art. 2(a) Crime and Courts Act 2013 (Commencement No 10 and Transitional Provision) Order 2014/954. 52 See sections 31A, 31C and 31E (1)(a) Matrimonial and Family Proceedings Act 1984. 53 Section 61(1) and sch 1 of the Senior Courts Act 1981. 54 See n 10 above. 55 S Nason and D Gardner ‘The Administrative Court and Administrative Law in Wales and Comparative Perspectives’ in S Nason (ed) Administrative Justice in Wales and Comparative Perspectives (University of Wales Press Cardiff 2017). 56 Ibid, at 260. 57 Section 108(2) Government of Wales Act 2006, which will be replaced by section 108A(2) Government of Wales Act 2006 when the relevant provisions of the Wales Act 2017 are enacted. 58 For more details on the powers of the National Assembly under the conferred model, see D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016), paras 4–6 to 4–19 and D Hughes and H Davies ‘Accessible Bilingual Legislation for Wales’ [2012] Statute L Rev 33, 103. 59 Which will come into force when section 4 and sch 3 Wales Act 2017 are brought into force. 60 See S Nason and D Gardner ‘The Administrative Court and Administrative Law in Wales and Comparative Perspectives’ in S Nason (ed) Administrative Justice in Wales and Comparative Perspectives (University of    Wales Press Cardiff   2017) at 261. 61 Para. 8(1)(f), sch 7A Government of Wales Act 2006, inserted into the 2006 by sch 1 Wales Act 2017. 62 Paras 8–10 of sch 7B to the 2006 Act. 63 Para. 13 of sch 7B to the 2006 Act. 64 Quote reproduced from Justice Stakeholder Group Law and Justice in Wales: Some Issues for the Next Assembly (March 2016) para. 31. 65 M Antoniw AM Statement: Codes of Welsh Law (13 December 2016) 17:05, Record of Proceedings, http://www.assembly.wales/en/bus-home/pages/rop.aspx?meetingid=4012&assembly=5&c=Record%20of%20Proceedings#449186. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

An Administrative Law Code for Wales: Benefits to Reap and Obstacles to Overcome

Statute Law Review , Volume Advance Article – Feb 21, 2018

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Abstract

Abstract Wales is about to undergo a radical change to the legislative process. In line with the recommendations of the Law Commission in the report Form and Accessibility of the Law Applicable in Wales, Wales will soon see its first modern legal codes. A decision will need to be made on how the law in Wales will be codified and in what areas. This article will seek to provoke discussion and argue that a code bringing together the principles of administrative law should in the near future form part of the codification programme. The article will propose a model of codification that will incorporate current principles of administrative law and supplement those principles for the benefit of the principle of good administrative justice. The article will also discuss the extent to which the National Assembly has legislative competence to make an administrative law code for Wales. Finally, the article will discuss the current common law nature of administrative law in Wales and argue that codification would bring clarity and certainty without removing the safety and flexibility of the common law. INTRODUCTION Wales is about to undergo a radical change to the legislative process. In June 2016, the Law Commission presented the report Form and Accessibility of the Law Applicable in Wales (‘the Law Commission report’).1 In the Law Commission report, among other recommendations, the Law Commission recommended the Welsh Government and the National Assembly for Wales should consider codifying the law in certain devolved subject areas. The Welsh Government in its response to the report agreed ‘that a sustained, long term programme of consolidation and codification of Welsh law would deliver societal and economic benefits and is necessary to ensure that the laws of Wales are easily accessible’.2 Since that date, a number of Welsh Government reports have identified the benefits of and desire for codification and have undertaken to implement pilots and consultations on codification.3 It appears very likely that Wales will soon see its first modern legal codes.4 Codification of the law in Wales will be a huge undertaking and, for practical as well as competence reasons, could not be done in one single code representing all the laws applicable in Wales. A decision will need to be made on how the law will be codified and in what areas. The Law Commission report recommended ‘that those areas in which the law is in most need of being brought together in Assembly legislation should be identified and the process of bringing the legislation together should be undertaken’.5 The Law Commission report, at chapter 7, identifies education, social care, planning, environment, and housing as areas that would benefit from codification. These areas were also identified as key areas for codification by the Justice Stakeholder Group commissioned by the National Assembly for Wales.6 While these areas are, by consensus, the first areas that will be considered for codification, this article will seek to provoke discussion and argue that a code bringing together the principles of administrative law should in the near future also fall for consideration. WHAT WILL CODIFICATION IN WALES LOOK LIKE? Around the world, there are a number of different forms of codification practised.7 The Law Commission report was quite specific in what it envisaged: A code will be an Act of the National Assembly which should stand upon enactment and in the future as the only statement of primary legislation on a given topic. The process of codification encompasses production of an Act of this kind and the labelling of an appropriately comprehensive Act or Bill as a code.8 … We recommend that the ultimate goal of the Welsh Government and the National Assembly should be the organisation of primary legislation into a series of codes dealing comprehensively with particular areas of devolved law.9 … [W]e consider that, where appropriate, judge-made rules… may usefully be incorporated into a code. This would be done on the basis of a careful assessment of the merits of doing so case by case. We remain of the view that codification should not fundamentally alter the relationship between statute law and judge-made law.10 As the Welsh Government has accepted the Law Commission’s recommendations, it is likely that codification of the devolved areas will, largely, follow this model, although Dylan Hughes, First Legislative Counsel, has suggested that statutory guidance may also be incorporated into the code.11 A code will be the sole authority for the devolved area of law and will incorporate statute law, potentially statutory guidance, and selected principles outlined in case law. Other case law, presumably where the decision is case specific, will not be incorporated into the code but may assist in clarifying the principles of the code. An administrative law code for Wales (‘ALCW’) following this format would have a number of benefits over the present system. ADVANTAGES OF CODIFICATION FOR WALES There are a number of advantages to codification in general. A key and recurring criticism of the law, as it is in Wales, is that it is not easy to understand what the law is on any given topic.12 This is a direct result of the diverging nature of the law in England and the law in Wales and it ‘is the legacy of an incremental approach to devolution’.13 A single legal code that details the entire law on a topic in Wales would provide that greater clarity and thus it would ensure greater access to justice by allowing the people of Wales to easily access the law. In response to the Law Commission’s consultation, the Wales Governance Centre backed the idea of codification of the law in Wales for these very reasons: [C]odification as by far the most effective and innovative way to radically improve both the substance and the accessibility of the law in Wales.14 In his consultation response, the then Lord Chief Justice of England and Wales, Lord Thomas of Cwmgiedd, also expressed support for codification. He suggested that codified legislation would be easier to understand: I have for a long time spoken about the drawbacks of the Westminster model of drafting legislation and its inflexibility to allow the user to easily appraise changes.15 It can be argued that the diverging nature of the law in Wales, moving as it is in a different direction from the law in England in many respects,16 brings a pressing need for more accessible and clearer law in Wales. As observed by Professor R. Gwynedd Parry: Although having two legislatures making laws for the same territory is not of itself unusual, it does pose challenges in terms of clarity and accessibility. The people need to know the law that applies to them. A unified body of Welsh law, the law that applies in Wales, regardless of where it is made, must be clear and accessible to the public. The Law Commission has recognised the challenges to accessibility and clarity which the current position poses, and made proposals based on the fundamental tenet, in the context of legislation, that accessibility is central to the rule of law. It made proposals for the codification in new National Assembly legislation of legislation whose subject matter is within the legislative competence of the National Assembly for Wales and which is currently dispersed in pieces of legislation of the United Kingdom Parliament and/or the National Assembly.17 Improved access to justice and clarity must be a goal for any legislature. For Wales, as was noted by the Wales Governance Centre in the report Justice in Wales: Principles, Progress and Next Steps: [C]larity and efficiency are important principles…but a more rounded approach is required, one in which a full set of guiding principles is articulated and promoted.18 AN ADMINISTRATIVE LAW CODE FOR WALES: WHAT TO INCLUDE Any legal codes for Wales must be written with a view to clarifying the principles of law in Wales. They must also ensure that the principles are drawn together into the single code, thus allowing a single point of reference for public bodies and those with legal rights in Wales. Administrative justice in Wales would benefit from codification of administrative law principles in Wales. To examine why it is efficacious to combine that question with a discussion of what would be included in an ALCW. A four-pronged approach is necessary to ensure that the code incorporates current principles, draws together disparate principles, advances the principle of good administrative justice, and outlines clear redress mechanisms (see the below sections for details). The Traditional Principles Any ALCW should start with the traditional common law principles of administrative law and give them the clarity of being outlined in a single place. At present, the traditional principles of administrative law can be listed under broad headings. In essence, under the traditional common law principles of administrative law, a public body must act in a way that is19: Lawful; Reasonable; Procedurally proper; and Human rights compliant. These broad principles are long-standing principles, as identified by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service,20 although the latter was made a key component of administrative law when section 6(1) of the Human Rights Act 1998 was enacted which brought certain articles of the European Convention on Human Rights 1950 into the law of England and Wales.21 These broad headings can, in turn, be sub-divided. For example, an act or omission by a public body may be vitiated by procedural impropriety where22: The public body failed to observe procedural rules23; The public body has fettered its discretion24; The public body failed to give adequate reasons where reasons are required25; or The public body failed to consult properly where a requirement to consult existed.26 As can be observed from the perspective of the duty to act in a procedurally proper manner, the common law principles, while summarized above, are disparate and relatively difficult to draw together for a lawyer, let alone a lay person attempting to understand their administrative law rights. The broad categories could form the basis for an ALCW with subdivisions within the code to reflect and give more substance to those subdivisions. By properly outlining the traditional administrative law principles in a code, administrative law rights would be understandable and access to justice would be greatly improved. Consolidating and Enhancing Principles The National Assembly would be able to add to the traditional administrative law duties by incorporating and clarifying other duties that have been brought in by way of legislation. An example of an appropriate area in which this could occur would be the sustainable development and well-being duties that have been brought into the law in Wales under the Well-being of Future Generations (Wales) Act 2015 (‘the 2015 Act’).27 The 2015 Act is seminal public law legislation. In enacting it, the National Assembly became ‘the first legislature in the world to enshrine in law a duty, falling on public bodies, to safeguard the well-being of future generations’.28 Under sections 3 and 5 of the 2015 Act, public bodies in Wales29 must carry out sustainable development. In fulfilling this duty, they must set and publish well-being objectives.30 These are objectives relating to how the public body intends to contribute to the achievement of the well-being goals, which are set out in section 4 of the 2015 Act. Public bodies must set well-being objectives that seek to maximize their contribution to the well-being goals. In addition, they must take all reasonable steps, in exercising their functions, to meet their objectives.31 The well-being goals are outlined in a table that appears at section 4 of the 2015 Act: Goal Description of the goal A prosperous Wales. An innovative, productive and low carbon society which recognises the limits of the global environment and therefore uses resources efficiently and proportionately (including acting on climate change); and which develops a skilled and well-educated population in an economy which generates wealth and provides employment opportunities, allowing people to take advantage of the wealth generated through securing decent work. A resilient Wales. A nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change). A healthier Wales. A society in which people’s physical and mental well-being is maximised and in which choices and behaviours that benefit future health are understood. A more equal Wales. A society that enables people to fulfil their potential no matter what their background or circumstances (including their socio economic background and circumstances). A Wales of cohesive communities. Attractive, viable, safe and well-connected communities. A Wales of vibrant culture and thriving Welsh language. A society that promotes and protects culture, heritage and the Welsh language, and which encourages people to participate in the arts, and sports and recreation. A globally responsible Wales. A nation which, when doing anything to improve the economic, social, environmental and cultural well-being of Wales, takes account of whether doing such a thing may make a positive contribution to global well-being. Goal Description of the goal A prosperous Wales. An innovative, productive and low carbon society which recognises the limits of the global environment and therefore uses resources efficiently and proportionately (including acting on climate change); and which develops a skilled and well-educated population in an economy which generates wealth and provides employment opportunities, allowing people to take advantage of the wealth generated through securing decent work. A resilient Wales. A nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change). A healthier Wales. A society in which people’s physical and mental well-being is maximised and in which choices and behaviours that benefit future health are understood. A more equal Wales. A society that enables people to fulfil their potential no matter what their background or circumstances (including their socio economic background and circumstances). A Wales of cohesive communities. Attractive, viable, safe and well-connected communities. A Wales of vibrant culture and thriving Welsh language. A society that promotes and protects culture, heritage and the Welsh language, and which encourages people to participate in the arts, and sports and recreation. A globally responsible Wales. A nation which, when doing anything to improve the economic, social, environmental and cultural well-being of Wales, takes account of whether doing such a thing may make a positive contribution to global well-being. View Large Goal Description of the goal A prosperous Wales. An innovative, productive and low carbon society which recognises the limits of the global environment and therefore uses resources efficiently and proportionately (including acting on climate change); and which develops a skilled and well-educated population in an economy which generates wealth and provides employment opportunities, allowing people to take advantage of the wealth generated through securing decent work. A resilient Wales. A nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change). A healthier Wales. A society in which people’s physical and mental well-being is maximised and in which choices and behaviours that benefit future health are understood. A more equal Wales. A society that enables people to fulfil their potential no matter what their background or circumstances (including their socio economic background and circumstances). A Wales of cohesive communities. Attractive, viable, safe and well-connected communities. A Wales of vibrant culture and thriving Welsh language. A society that promotes and protects culture, heritage and the Welsh language, and which encourages people to participate in the arts, and sports and recreation. A globally responsible Wales. A nation which, when doing anything to improve the economic, social, environmental and cultural well-being of Wales, takes account of whether doing such a thing may make a positive contribution to global well-being. Goal Description of the goal A prosperous Wales. An innovative, productive and low carbon society which recognises the limits of the global environment and therefore uses resources efficiently and proportionately (including acting on climate change); and which develops a skilled and well-educated population in an economy which generates wealth and provides employment opportunities, allowing people to take advantage of the wealth generated through securing decent work. A resilient Wales. A nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change). A healthier Wales. A society in which people’s physical and mental well-being is maximised and in which choices and behaviours that benefit future health are understood. A more equal Wales. A society that enables people to fulfil their potential no matter what their background or circumstances (including their socio economic background and circumstances). A Wales of cohesive communities. Attractive, viable, safe and well-connected communities. A Wales of vibrant culture and thriving Welsh language. A society that promotes and protects culture, heritage and the Welsh language, and which encourages people to participate in the arts, and sports and recreation. A globally responsible Wales. A nation which, when doing anything to improve the economic, social, environmental and cultural well-being of Wales, takes account of whether doing such a thing may make a positive contribution to global well-being. View Large In essence, there is a positive duty on Welsh public bodies, which can properly be described as a principle of administrative law, to act in a way that maximizes the well-being goals. If this duty was incorporated into an administrative law code then it would sit with equal standing alongside the common law administrative law principles and, it is submitted, would do much to further the goals. It may even be argued that to truly ‘embed sustainable development as the “central organising principle” of public governance in Wales’,32 then the sustainability principle needs to be approached as an equal to the traditional public law principles. In the event that sections 2–5 of the 2015 Act were incorporated into an administrative law code for Wales then failure to set objectives, setting objectives that did not comply with the goals, failure to take reasonable steps to meet the objectives, or failure to act in accordance with the objectives, would be clearly identifiable, challengeable decisions/failures. Such a failure/decision would be of equal significance to a failure to conduct a lawful consultation or a failure to abide by a legitimate expectation, which under the 2015 Act it is arguably not.33 Further Principles The aim of an ALCW cannot simply be to clarify and consolidate administrative law in Wales. It must ‘promote Wales as a progressive nation in the development of its administrative justice system, and as a nation demonstrating the highest commitment to standards of public decision-making, human rights, and the protection of vulnerable groups within society’.34 Codification of the principles of administrative law for Wales can do more than draw together the current principles. Wales can expand upon the current, disparate, common, and statute law principles with further principles outlined in the code as it deems appropriate. An appropriate way to progress administrative justice (which is a broader term than administrative law) in Wales in the form of additional provisions in a code would be the incorporation of the principles advocated by the Administrative Justice and Tribunals Council and modified with specific regards to Wales in the Bangor University Report, Understanding Administrative Justice in Wales (‘the Bangor report’).35 The Bangor report suggests Wales would benefit from adopting administrative justice principles that would require public bodies to36: Make citizens and their rights and needs central, treating them with fairness and respect at all times. Ensure that decisions are based on appropriate procedures, and that people have a right to challenge such decisions including seeking redress using procedures that are accessible, independent, impartial, open and appropriate for the matter involved. Ensure people are treated as partners in the resolution of their disputes, keeping them fully informed and enabling them to resolve their problems as quickly and comprehensively as possible. Ensure that decisions are well-reasoned, lawful and adequately democratic and that outcomes are communicated in an appropriate and timely manner. Ensure that decisions are coherent, consistent and of sufficient clarity. The system itself must also be coherent from the citizen perspective and ensure that these principles of administrative justice are applied consistently throughout. Work proportionately, efficiently and effectively. Adopt the highest standards of integrity, public administration and good governance, and be designed to learn from experience and continuously improve, including fostering communication between various decision-makers and redress mechanisms. Where possible, provide an opportunity for informal dispute resolution, which may include online dispute resolution where appropriate. Minimise any disadvantages to unrepresented parties. Ensure that decisions are taken by those with appropriate expertise and encourage accurate and accountable decision-making. Ensure respect for human rights, equality, sustainability and the protection of vulnerable groups including children and older people. Ensure appropriate respect for the Welsh language including compliance with Welsh Language Standards where applicable. The last two principles may not be needed in an administrative law code as they would be covered by inclusion of the already existing common law and statutory principles, but they have been included in the list above as the code may wish to go further than the current law. The Bangor report notes the potential issues with making general statements such as the above, as general statements may lack clarity and invite conflict.37 The Bangor report concludes that: Properly drafted these could help move Wales away from a seemingly common adherence to the idea that administrative justice aligns primarily with administrative law (and highly legalistic values). In order for an ALCW to be a single code on administrative law for Wales, it must include those administrative law principles that are already in place. In the context of codification, it is submitted that alignment of the principles of administrative law with these further principles would only increase access to justice and it would do so in a socially progressive way. Incorporation of the Bangor report principles into an ALCW, alongside the traditional common law and statutory principles, would clarify administrative law in Wales and provide better access to justice. It would also lead the way in terms of ensuring that public bodies approach administrative justice in the most user-friendly fashion and ‘shows considerable commitment to social justice and individual rights’.38 Redress Mechanisms One of the major criticisms of the Well-being of Future Generations (Wales) Act 2015 is that it does not clearly outline what, if any, redress mechanisms exist if public bodies are failing to comply with their sustainability and well-being duties.39 The same criticism can be directed at other decisions of public bodies where there are methods of redress in law but those methods of redress are not clear. The exact nature of any redress mechanisms is too large a topic to cover in detail in this article. It is sufficient to note that any single code on administrative law must incorporate a procedural section to outline how non-compliance with the code can be enforced.40 The method of redress may be by way of an Ombudsman,41 a specific tribunal, a number of tribunals,42 by way of the Administrative Court in Wales,43 or indeed a combination of these procedures, but without clearly defined redress mechanisms and procedures, the principles are either not enforceable or difficult to enforce. After all, the law is only as good as it is enforceable. OVERCOMING THE DISADVANTAGES There are arguments against an administrative law code for Wales. The two principle arguments are that such a code would be less desirable than the common law system of administrative law currently in place and that, in any event, the National Assembly would lack legislative competence to introduce such a code. These are proper criticisms, but they should be seen as challenges to overcome rather than immovable obstacles. Common Law Protections Dr Sarah Nason, who writes extensively and excellently on administrative justice in Wales, has said that the codification of common law principles may ‘stultify progressive development’ of those principles.44 It may well be that an ALCW would slow the development of common law administrative law principles, but the first point to make to counter this is that development of clear and express principles must be favourable. As Paul Bowen QC noted (albeit in reference to human rights principles): Even where common law rights have been established for many years, the absence of express words means that these rights are less certain in scope, their underlying justification often unclear or the subject of conflicting judgments and therefore more easily displaced or qualified by statute or other legal norms.45 The second point to make is that common law and statute law (the latter as the code would be) can and do exist side by side. Two examples can be examined to show that the implantation of a statutory scheme does not mean that common law rights are eroded and thus the implementation of an ALCW would not remove the protections of the common law principles of administrative law. The two examples come from human rights law and family law. On 2 October 2000, section 6(1) of the Human Rights Act 1998 (‘the 1998 Act’) incorporated a number of articles of the European Convention of Human Rights 1950 into the law of England and Wales.46 The 1998 Act brought clarity and structure to the human rights regime in the United Kingdom and brought human rights values in the United Kingdom into line with the human rights values of Europe. When the Conservative Government suggested that the 1998 Act should be repealed,47 many feared that this would mean the removal of human rights protections within the United Kingdom. A number of commentators, however, have asserted that the repeal of the Human Rights Act 1998 would not reduce or diminish human rights protections in the United Kingdom because those rights are protected in common law.48 A statutory code would not remove common law rights. However, a statutory ALCW would take precedence over common law and the Courts would be unlikely to rely on common law rights to act in a manner contrary to clearly articulated principles in the code, but the common law principles would remain in place to cover those situations where there is no statutory code covering the point.49 The extent to which it is desirable that the 1998 Act is repealed and how effective UK common law rights would be compared to maintaining the European system of common human rights values is a matter of debate,50 but for the purposes of this article, the key point is that the common law administrative law principles would still exist and could be relied on if a scenario arose whereby the ALCW was found to be deficient. For a precedent for how this would work in practice we can look to the Family Court. On 22 April 2014, the single Family Court was created.51 Since the creation of the single Family Court, the majority of family law matters are dealt with in the Family Court, including the majority of those statutory matters that were previously assigned to the Family Division of the High Court.52 However, the Family Division of the High Court has not been abolished. It is still needed as the Family Division of the High Court retains an inherent jurisdiction to deal with common law matters that arise in family proceedings.53 In the event that an ALCW is implemented, the code would not (and could not) entirely oust the common law jurisdiction of the Administrative Court. Where the Administrative Court determines that a common law administrative law principle exists and it is not sufficiently outlined or it is not outlined at all in the code, then the judge may declare as such in a judgment. The judgment would still have common law force, and the National Assembly would then consider whether the point would need to be incorporated into or clarified in the code, as was envisaged by the Law Commission in the Law Commission Report.54 Common law arguments would be rare and would become increasingly rare as the code developed, but retention of the inherent jurisdiction would act as a backstop for administrative law rights and would help to finesse the code. Legislative Competence In the article ‘The Administrative Court and Administrative Law in Wales and Comparative Perspectives’,55 Nason and Gardner considered that: [T]he development of a general administrative procedure Act may not be possible at present given the Assembly’s current legislative competence and the continued existence of a fused England and Wales legal jurisdiction.56 That position must, generally, be correct. It would be the National Assembly that would enact and update the code by way of its powers to make primary legislation (an ‘Act of the Assembly’) under section 107(1) of the Government of Wales Act 2006 (‘the 2006 Act’). However, the National Assembly may only make an Act of the Assembly where it has legislative competence to do so.57 At the time of writing the National Assembly operates under a conferred powers model, but this will become a reserved powers model when section 3 of the Wales Act 2017 comes into force. At present, the Assembly only has competence to legislate if the provisions of the Act relate to one or more of the devolved subjects listed under the 21 headings in Schedule 7 to the 2006 Act. An Act of the Assembly must also comply with the conditions outlined in section 108 of the 2006 Act and the general restrictions in Parts 2 and 3 of Schedule 7.58 Under the reserved power model, Acts of the Assembly will still have to be within legislative competence, but to do so, their provisions must not relate to any matter listed as reserved to the UK Parliament as set out in Schedule 7A of the 2006 Act. Furthermore, an Act of the Assembly will also have to comply with the conditions outlined in section 108A and schedule 7B of the 2006 Act. To remain within legislative competence, an administrative law code for Wales would need to ensure that its provisions did not stray into areas that are outside of the competence of the Assembly. The simplest way to ensure that an administrative law code of Wales remains within legislative competence is to ensure that it only applies to bodies that are within legislative competence. As any ALCW would be enacted after the Wales Act 2017 is in force, the code should include a provision that it only applies to devolved Welsh authorities as defined in statute, as replicated in the code. The code would replicate the test outlined in section 157A(1)–(3) of the 2006 Act,59 which provides: (1) In this Act ‘devolved Welsh authority’ means— (a) a public authority that meets the conditions in subsection (2), (b) a public authority that is specified, or is of a description specified, in Schedule 9A (whether or not it meets those conditions), or (c) the governing body of an institution within the higher education sector (within the meaning of section 91(5) of the Further and Higher Education Act 1992) whose activities are carried on, or principally carried on, in Wales. (2) A public authority meets the conditions in this section if its functions— (a) are exercisable only in relation to Wales, and (b) are wholly or mainly functions that do not relate to reserved matters. (3) In determining for the purposes of this section whether functions of a public authority are exercisable only in relation to Wales, no account is taken of any function that— (a) is exercisable otherwise than in relation to Wales, and (b) could (apart from this paragraph) be conferred or imposed by provision falling within the Assembly’s legislative competence (by virtue of section 108A(3)). Schedule 9A of the 2006 Act contains a (non-exhaustive) list of public bodies (such as the Welsh Ministers and Welsh Local Authorities) which are automatically considered to be a devolved Welsh Authority and which should also be incorporated into the code. By ensuring that the code only applies to bodies themselves confined by legislative competence, the principles of the code cannot be said to have any impact outside of legislative competence. As Nason and Gardner note,60 judicial review of administrative action will remain a reserved matter under the Wales Act 2017,61 which would prevent any administrative law code from circumventing the common law judicial review principles. However, as illustrated above, an ALCW in the form argued for by this article would not circumvent the common law judicial review principles or prevent access to the Administrative Court by way of judicial review. The judicial review procedure would still exist to challenge the decision of UK wide public bodies acting in Wales (such as the Secretary of State for the Home Department when making immigration decisions) and it would still act as the common law backstop. The ALCW would complement the judicial review procedure in a way that would benefit the people of Wales by establishing clear administrative justice principles for devolved Welsh authorities and it would increase access to justice when seeking to challenge the decisions of those Welsh devolved authorities. Going Further: The Code and Non-Welsh Devolved Authorities In general, both the reserved power and conferred power settlements prevent the Assembly for legislating outside of the terms outlined above. It should, however, be noted that the Assembly can legislate for public authorities which are not devolved Welsh authorities with the consent of (generally) the Minister of the Crown.62 Furthermore, the Assembly can restate the law even in areas that are not devolved.63 The ability to legislate in these circumstances may be useful in drafting an ALCW as it would allow the code to include all of the relevant provisions regardless of whether they are within the Assembly’s competence, and one could for example provide that in interpreting such provisions, they were to be kept in alignment with decisions of the courts relating to the rules and principles in question. CONCLUSION If there is to be an ALCW, it must come sooner rather than later. At the Legal Wales Conference in Cardiff in October 2013, the then Lord Chief Justice Lord Thomas of Cwmgiedd suggested that Wales should look towards a codified form of legislation now: In Wales, there is a huge advantage that Welsh legislation has but a short history. There is no reason, therefore, why it cannot develop its own innovative style…Furthermore, Wales can begin its own sensible organisation of Welsh law into a Code with chapters into which new laws can be inserted and old laws amended, much along the lines of what is done in most states. Westminster is burdened by history. It is therefore a model that does not have to be followed.64 In line with the comments of Lord Thomas, an ALCW should be considered sooner rather than later. Implementation as soon as possible would mean a code that benefits from avoiding the historical problems that dog the law of England and Wales. Such a code could act as a code for administrative decision-making in Wales in the devolved subject areas for welsh devolved authorities. This would have the advantage of improving access to justice and administrative justice in Wales in those devolved areas. It would also, perhaps even more importantly, allow the Welsh Government and National Assembly to iron out any issues with a codified administrative law before (and if) a separate legal jurisdiction for Wales is created. That way a tested system would already exist that could be built on and modified under the new jurisdiction. The final word on the subject should be given to the former Counsel for General for Wales, Mick Antoniw AM in his well-articulated statement for the National Assembly, which as this article has shown, applies as much to principles of administrative law as any other area of law: As a young legislature with relatively new powers to legislate, we in the National Assembly for Wales have a unique opportunity to bring order to the laws that we have inherited and to take a different approach to making new laws. This approach would put the citizen—the ultimate users of legislation—first, by ensuring our laws are clear, accessible and well kept. As Aristotle said, ‘Law is order, and good law is good order.’ Our opportunity is to lead the way in the United Kingdom by starting on a path of consolidation and codification of our law. Codes of Welsh law could underpin our legal jurisdiction and more generally form part of the foundations of our nation. Concerns have been raised for many years about the complexity of the law in the United Kingdom and the disorganised state of our vast and sprawling statute book…Codifying our laws is something that has never been done before in the UK and I can only speculate as to why this is the case, but I suspect it is because of the size and cost of the task, and perhaps because of a lack of political will due to other more high-profile options taking priority. So, making this a priority is perhaps more difficult than ever, given the reductions in budgets that we face. But it could be said that bringing order to the law would be more than worthwhile, given the social benefits it would bring to the people of Wales, whose access to justice is more constrained than ever before in the light of cuts to legal aid and the closure of courts. There would also be efficiency gains across all sectors, bringing financial benefits to the economy and more clarity to our highly complex system of government. These are also issues that should be of concern to us as a responsible and maturing legislature… I believe that we have a responsibility to deal with a problem that is not of our making, but we have also an opportunity to lead the way.65 Footnotes 1 Law Commission Report No 366 (Parliamentary Printers, London, HC 469-I, 29 June 2016). 2 See https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/06/2017-07-19-Law-Commission-Final-Response.pdf. 3 See Justice Stakeholder Group Law and Justice in Wales: Some Issues for the Next Assembly (March 2016); Welsh Government Report on the Implementation of Law Commission Proposals (February 2017); Welsh Government Progress Update on the Work of the Justice Stakeholder Group (April 2017). 4 For a discussion of the medieval laws of Wales made during the reign of Hywel Dda, which could arguably be described as codes, see T Watkin The Legal History of Wales (2nd edn University of Wales Press Cardiff 2012). 5 Law Com No 366, para. 2.76. 6 See Justice Stakeholder Group Law and Justice in Wales: Some Issues for the Next Assembly (March 2016) para. 30. 7 For analysis of the systems in Australia and the Netherlands compared to Wales, see S Nason and D Gardner ‘The Administrative Court and Administrative Law in Wales and Comparative Perspectives’ in S Nason (ed) Administrative Justice in Wales and Comparative Perspectives (University of Wales Press Cardiff 2017). 8 Law Com No 366, para. 2.13. 9 Ibid, para. 2.55. 10 Ibid, para. 2.63. 11 D Hughes Developing Codes of Welsh Law (Legal Wales Conference, Swansea University 15 September 2017). 12 Good examples of this in a number of areas of law can be found in ch. 5 of Form and Accessibility of the Law Applicable in Wales (2015) Law Commission Consultation Paper No 223. The issue is also discussed in D Hughes and H Davies ‘Accessible Bilingual Legislation for Wales’ [2012] Statute L Rev 33, 103 at 113 onwards. 13 Law Commission Consultation Paper No 223, para. 5.2. 14 Law Com No 366, para. 2.4. 15 Ibid, para. 2.39. 16 As an illustrative example, compare and contrast the Care Act 2014 in England and the Social Services and Well-being (Wales) Act 2014 in Wales. 17 RG Parry ‘Is Breaking Up Hard to Do? The Case for a Separate Welsh Jurisdiction’ [2017] Irish Jurist 57, 61–93 at 74. 18 H Pritchard Justice in Wales: Principles, Progress and Next Steps (June 2016) para. 2.1, http://sites.cardiff.ac.uk/wgc/2016/09/12/justice-in-wales-new-report-sets-out-reform-proposals/. 19 For a discussion of the principles of administrative law as they apply in Wales, see D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) ch. 3. More generally, see HWR Wade and CF Forsyth Administrative Law (11th edn Oxford University Press Oxford 2014) and H Woolf et al. De Smith’s Judicial Review (7th edn Sweet & Maxwell UK 2013). 20 [1985] AC 374. 21 Brought into force on 2 October 2000 by Art. 2 of the Human Rights Act 1998 (Commencement No 2) Order 2000 (SI 2000 No 1851). 22 See D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) at ch. 3 where the subdivisions are discussed for all four broad categories. The following list is a list of common law examples of procedural unfairness. As it is based in common law, it cannot be said to be an exhaustive list. 23 See D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) at 3–21 or Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at 410 and Lloyd v. McMahon [1987] AC 625 at 702–3. 24 See D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) at 3–22 or British Oxygen Co Ltd v. Minister of Technology [1971] AC 610. 25 See D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) at 3–23 or Oakley v. South Cambridgeshire District Council [2017] 2 P. & C.R. 4. 26 See D Gardner, Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) at 3–24 or R v. North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 and R (Moseley) v. Haringey London Borough Council [2014] 1 WLR 3947. 27 anaw. 2. 28 H Davies ‘The Well-being of Future Generations (Wales) Act 2015: Duties or Aspirations?’ [2016] Env L Rev 18, 41–56 at 41. 29 Which are defined in section 6 Well-being of Future Generations (Wales) Act 2015. 30 Ibid, section 3(2)(a). 31 Ibid, section 3(2)(b). 32 H Davies ‘The Well-being of Future Generations (Wales) Act 2015: Duties or Aspirations?’ [2016] Env L Rev 18, 41–56 at 44, in turn referring to phrase used by the Welsh Government in One Wales, One Planet at 9. http://gov.wales/docs/desh/publications/090521susdev1wales1planeten.pdf. 33 The extent to which the 2015 Act creates enforceable duties as opposed to aspirational duties is discussed in H Davies H Davies ‘The Well-being of Future Generations (Wales) Act 2015: Duties or Aspirations?’ [2016] Env L Rev 18, 41–56. If the principles of the 2015 Act were enshrined in an administrative law code for Wales, then there would be no debate and the duties would certainly be enforceable. 34 S Nason ‘Understanding Administrative Justice in Wales: Full Report Including Executive Summary’ (November 2015) para. 2.49. http://adminjustice2015.bangor.ac.uk/documents/full-report.pdf. 35 Ibid. The conclusions of the Bangor report were supported by the Wales Governance Centre, see H Pritchard Justice in Wales: Principles, Progress and Next Steps (June 2016) para. 2.1, http://sites.cardiff.ac.uk/wgc/2016/09/12/justice-in-wales- new-report-sets-out-reform-proposals/. 36 S Nason ‘Understanding Administrative Justice in Wales: Full Report Including Executive Summary’ (November 2015) para. 2.49. http://adminjustice2015.bangor.ac.uk/documents/full-report.pdf. 37 Ibid, para. 2.48. 38 Ibid. 39 H Davies ‘The Well-being of Future Generations (Wales) Act 2015: Duties or Aspirations?’ [2016] Env L Rev 18, 41–56 at 52–53. 40 By way of analogy, see the General Administrative Law Act 1994 in the Netherlands that includes rules for decisions made by administrative authorities and creates a general right of appeal to an administrative court. See S Nason and D Gardner ‘The Administrative Court and Administrative Law in Wales and Comparative Perspectives’ in S Nason (ed) Administrative Justice in Wales and Comparative Perspectives (University of Wales Press Cardiff 2017) at 252–258 for a discussion of the 1994 Act. 41 The procedure outlined under the Public Services Ombudsman (Wales) Act 2005 could be incorporated into the code. 42 See D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016) paras 1–24 to 1–27 or S Nason and D Gardner, ‘The Administrative Court and Administrative Law in Wales and Comparative Perspectives’ in S Nason (ed) Administrative Justice in Wales and Comparative Perspectives (University of Wales Press Cardiff 2017) at 251–252, for information on the Tribunals that sit in England and Wales and the Wales only Tribunals. 43 Civil Procedure Rules Part 54 covering judicial review or Civil Procedure Rules Practice Direction 52D para. 27A covering Welsh Appeals in the Administrative Court may be starting points for any procedure in the code. 44 Law Com No 366, para. 2.42. 45 See P Bowen ‘Does the Renaissance of Common Law Rights Mean that the Human Rights Act 1998 Is Now Unnecessary?’ [2016] EHRLR 4, 361–77 at 366. 46 See n 20 above. 47 Protecting Human Rights in the United Kingdom: The Conservative Party’s Proposals for Changing Britain’s Human Rights Laws (2014). 48 See, e.g., M Elliott ‘Beyond the European Convention: Human Rights and the Common Law’ [2015] CLP 68, 85 and M Tugendhat Liberty Intact: Human Rights in English Law (Oxford University Press Oxford 2016). 49 Parliamentary sovereignty was the reason why the Divisional Court and Court of Appeal in R. (on the application of Nicklinson) v. Ministry of Justice [2012] EWHC 2381 (Admin) refused to read in a defence of necessity to the criminal offences of murder and assisted suicide to give effect to common law rights of autonomy and dignity. See particularly Toulson LJ’s statement at para. 84 that to do so would ‘usurp the role of Parliament’. 50 P Bowen ‘Does the Renaissance of Common Law Rights Mean that the Human Rights Act 1998 Is Now Unnecessary?’ [2016] EHRLR 4, 361–77. 51 See section 17(3) Crime and Courts Act 2013 implemented by Art. 2(a) Crime and Courts Act 2013 (Commencement No 10 and Transitional Provision) Order 2014/954. 52 See sections 31A, 31C and 31E (1)(a) Matrimonial and Family Proceedings Act 1984. 53 Section 61(1) and sch 1 of the Senior Courts Act 1981. 54 See n 10 above. 55 S Nason and D Gardner ‘The Administrative Court and Administrative Law in Wales and Comparative Perspectives’ in S Nason (ed) Administrative Justice in Wales and Comparative Perspectives (University of Wales Press Cardiff 2017). 56 Ibid, at 260. 57 Section 108(2) Government of Wales Act 2006, which will be replaced by section 108A(2) Government of Wales Act 2006 when the relevant provisions of the Wales Act 2017 are enacted. 58 For more details on the powers of the National Assembly under the conferred model, see D Gardner Administrative Law and the Administrative Court in Wales (University of Wales Press Cardiff 2016), paras 4–6 to 4–19 and D Hughes and H Davies ‘Accessible Bilingual Legislation for Wales’ [2012] Statute L Rev 33, 103. 59 Which will come into force when section 4 and sch 3 Wales Act 2017 are brought into force. 60 See S Nason and D Gardner ‘The Administrative Court and Administrative Law in Wales and Comparative Perspectives’ in S Nason (ed) Administrative Justice in Wales and Comparative Perspectives (University of    Wales Press Cardiff   2017) at 261. 61 Para. 8(1)(f), sch 7A Government of Wales Act 2006, inserted into the 2006 by sch 1 Wales Act 2017. 62 Paras 8–10 of sch 7B to the 2006 Act. 63 Para. 13 of sch 7B to the 2006 Act. 64 Quote reproduced from Justice Stakeholder Group Law and Justice in Wales: Some Issues for the Next Assembly (March 2016) para. 31. 65 M Antoniw AM Statement: Codes of Welsh Law (13 December 2016) 17:05, Record of Proceedings, http://www.assembly.wales/en/bus-home/pages/rop.aspx?meetingid=4012&assembly=5&c=Record%20of%20Proceedings#449186. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

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Published: Feb 21, 2018

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