We have an official language – Welsh – and a right to use that language in court. We have two primary legislatures – one in Westminster, the other in Cardiff Bay. Although the law that the latter makes extends to England, it is only applicable here. In significant areas, for example, on rented housing, the law is very different to across the border, and the Social Services and Wellbeing (Wales) Act 2014 is a truly radical piece of legislation (replacing a raft of community care legislation and introducing a people-centred, rather than adult- or child-centred, approach). The Administrative Court sits here, and the Court of Appeal visits us. So despite the use of frequent quick hand references to the ‘English Bar’ – a phrase which perhaps trips a little too easily off the tongue – we are very much the Bar of England and Wales.
In South Wales, there are chambers in Cardiff, Newport, Swansea and Carmarthen. Traditionally, chambers were largely common law sets, but recent years have seen specialist civil (Civitas), criminal and regulatory (Apex), and family (Cathedral) sets open in Cardiff, alongside two big common law sets, 9 Park Place and 30 Park Place, and a number of smaller ones. Swansea has three common law sets, and there is a small set in Carmarthen. There are no chambers in North Wales, which is traditionally served by sets in Chester, Liverpool and Manchester.
Common law sets do not mean non-specialist barristers, however. Many specialise exclusively in crime, in personal injury work or in family law. In other areas of civil work, specialisms tend be broader. To take my own practice, it encompasses commercial and chancery work, public law, actions against the police and defamation. There is much to be said for a certain breadth of specialisation. Barristers such as George Carman or Lord Williams started their careers as common lawyers outside London – in the latter case, in Swansea. Too narrow a specialisation can leave people unable to see possibilities that may exist in a case, and a judiciary that is comfortable across a range of cases will be better placed to serve the public and better equipped to advance the coherent development of the law. Some years ago, it was commented that the (then) recorder of Cardiff would be as comfortable as the designated Chancery judge hearing a Chancery dispute, and the Chancery judge as comfortable as the recorder trying a murder.
Acquiring work of a type not traditionally done by many in Cardiff can present difficulties. I started my career in Gibraltar’s fused profession (a fused profession being the probably inevitable consequence of a jurisdiction with a population of 29,000) and there acquired experience of, and an interest in, defamation. In Cardiff, I’ve been able to build something of a defamation practice by giving talks on the subject, often through the Wales Commercial Law Association (WCLA). I suspect that where there are a number of well-established sets in a practice area, in London for example, a practitioner there, interested in defamation but not in one of the traditional defamation sets, might have had more difficulty than I have. Involvement in the Police Action Lawyers Group has allowed me to pursue this interest.
The breadth of work undertaken by Wales-based barristers may come as a surprise to some. One of my colleagues has a large public procurement practice. Several of us undertake significant public law work – whether immigration related, in the court of protection, or in planning (traditionally a strong field in Wales). I’ve already mentioned the Administrative Court and the Court of Appeal. But not all is rosy. There is no Court of Appeal office in Wales, and certain admin court matters have to go to London. And how many knew that the Intellectual Property Enterprise Court’s fast track guide suggests that hearings can only take place in London?
Associations like the WCLA and Public Law Wales (PLW) are active. However, when talking to colleagues about this article, more than one complained that events taking place in London come to our attention relatively late in the day (typically an e-mail only a few days before the event), without adequate facilities for participating remotely. Two-hour train journeys (at elevated prices due to the inability to book well in advance) need to be justified, as well as fitting in with our work schedules and family life. WCLA and PLW regularly put on events however – Newey J recently spoke at an event organised by the former, while the Chief Justice of Australia will be speaking to a PLW event in September. The annual Legal Wales Conference is a highlight of our legal year, often featuring high profile speakers. Middle Temple has sent advocacy trainers so that some of us could qualify as trainers without having to make the trip to London. It and other Inns have held dinners on Circuit.
It’s fair to say practice in Wales can have its frustrations, however. Sometimes costs are allowed for London counsel that far exceed the fee that would have secured perfectly good Welsh-based counsel. And the Silk system has real problems in its application in Wales. Evidence suggests that the prospects of taking Silk for practitioners outside London are 60% smaller than for those based in London, and anecdotal evidence indicates that few in Wales consider it worthwhile engaging with the system (see ‘Taking Silk: an empirical study of the award of Queen’s Counsel status 1981-2015’, (2015) 78(6) MLR 971-1003, Michael Blackwell).
The politics of language
The Welsh language is important. A number of colleagues are fluent Welsh speakers who can and do conduct cases in Welsh. There is an obvious need for Welsh-speaking judges, and academics are addressing the need for Welsh-language legal terms. I like to think that, in Wales, we’re getting our language politics about right. But there is a feeling among some – voiced to me by a Cardiff-based practitioner – that England sometimes perceives that Wales’ distinctiveness is adequately addressed purely by acknowledging the language. Given that most of us are not Welsh speakers, that cannot be correct. The Welsh language is an important part of Wales’ distinctiveness, but it is very far from the entirety of it.
The impact of devolution
Devolution gives practice in Wales a distinct flavour to elsewhere in the joint jurisdiction. Not only is the substantive law very different in some areas, but insofar as the Assembly is concerned, Wales has something akin to a written constitution. Devolution has been described as ‘a process, not an event’. It’s a process that still has a way to run. Last year saw a draft Wales Bill proposed and withdrawn, and this year has seen a new draft Bill. The expressed intention of Westminster in both was to introduce a reserved powers model. The extent to which either would achieve this aim is open to dispute – both contained a massive list of powers that would be reserved to Westminster. Reservations include items such as hovercraft, private security and knives – whether other items of cutlery could be legislated for would be open to dispute. Paragraph 186 of the new Sch 7A would reserve:
‘The regulation of—
(a) the design and construction of buildings,
(b) the demolition of buildings, and
(c) services, fittings and equipment provided in or in connection with buildings.’
Wags initially observed that the Bill would reserve everything but the kitchen sink, but it seems kitchen sinks too would be reserved.
The problems with both Bills have largely been attributed to the desire in Westminster to preserve the single jurisdiction of England and Wales. A collection of Welsh lawyers published the ‘Justice for Wales’ pamphlet in September 2015. This called for the re-establishment of a separate Welsh jurisdiction. With a foreword written by a retired High Court Judge (Sir Roderick Evans) and signed by a number of local Silks, I commend this pamphlet to anyone interested in justice in Wales. I recently gave evidence to the Assembly’s Constitutional and Legislative Affairs committee about the latest Bill. No one behind the pamphlet, however, has been asked to appear before any parliamentary committee about either this Bill or its predecessor – which is a shame as Welsh-based barristers would welcome that opportunity. Why Parliament didn’t want to hear from Welsh-based practitioners who’d published on the subject is unknown, and can risk causing resentment.
It’s fair to say that legal opinion is not unanimously behind the idea of a Welsh jurisdiction – although the problems with the latest draft Bill are persuading some sceptics that it is an idea which now deserves greater consideration and whose time might have come.
It would certainly not be in the interests of Wales-based practitioners to erect unnecessary barriers in the way of cross-border practice. A number of us also have chambers in England, and even those whose only chambers are here, regularly undertake work in England. I receive instructions from solicitors in the North of England. Some practice even further afield. John Charles Rees QC is frequently seen in the Gibraltar courts (where I also work in my capacity as a consultant to a local firm), and two colleagues from my own set – Malcolm Bishop QC and Huw Evans – are currently involved in a major case in the Turks and Caicos Islands.
All in all, Wales is a great place to practise. Distinctive Welsh legislation in areas like social care, an innovative mind set (for example, a criminal barrister, Jonathan Rees, has mentioned to me his concern at the impact that crimes being recorded live in their commission can have on practitioners, and is pressing for steps to be taken to address this), and some excellent local judges mean that quality of life need not be at the expense of quality of practice. There are also lots of good reasons why solicitors from outside Wales should use Welsh-based barristers. The cost of living in Wales means that the Welsh Bar is able to offer excellent value for money. Instructions are easily sent electronically, and we’re happy to travel. Wales offers a good quality of life – I have a short bike ride into chambers rather than enduring the Tube. And that quality of life doesn’t mean sacrificing quality of practice. It’s possible to build a great practice in Wales and to do it in great surroundings and among great colleagues.
Contributor David Hughes is a barrister at 30 Park Place Chambers