Legislating for Wales ‐ local government (Wales) act 1994

This article addresses the means of creating legislation with specific application to Wales and examines the constitutional conventions, parliamentary procedures and political processes involved. The article employs as a case study The Local Government (Wales) Act 1994. Although there are parliamentary procedures available which would allow Welsh interests a privileged role in Welsh affairs, it is found that the national interests of the political parties ensure that government ministers and the majority party in the House of Commons ultimately retain control over Welsh affairs. Nevertheless it is found that there are active policy communities with specific concerns in Welsh affairs who are prominent actors and who do give the legislative process concerning Wales distinctively Welsh characteristics.     

No longer a civil matter? The design and use of protection orders for domestic violence in England and Wales

ABSTRACT

This paper assesses the design and use of protection orders for domestic violence in England and Wales. It draws on data from 400 police classified domestic violence incidents and 65 interviews with victims/survivors, as well as new analysis of government justice data from England and Wales, to address a gap in literature on protection orders.

The paper identifies an increasing civil-criminal ‘hybridisation’ of protection orders in England and Wales, and argues that a dual regime has developed, with orders issued by police and/or in criminal proceedings increasingly privileged (and enforced) over victim-led civil orders. Whilst protection orders are being used – as intended – flexibly to protect domestic violence victims, the way they are applied in practice risks downgrading domestic violence in criminal justice terms.

The conclusions are especially timely in light of current Government proposals to rationalise protection orders by introducing a single overarching Domestic Abuse Protection Order in England and Wales.     

The Legal and Social Construction of Value in Government Procurement Markets

The Public Services (Social Value) Act 2012 introduces a social value duty. It requires public authorities in England and Wales that are carrying out procurement activities to ‘consider’ how such activities might ‘improve … economic, social and environmental well-being’. This article analyses qualitative, empirical data on how the social value duty has been interpreted and applied across local government in England. Although only a weak legal duty, this law has made a notable impact on practice. The article explains the changes brought about in practice under the social value duty and seeks to understand why these changes have occurred. It does so by recognizing local government procurement markets, as well as local government organizations themselves, as strategic action fields. In these fields, there are competing visions for social value. It is through conversations between actors that a common meaning comes to be attached to the law.     

School exclusions: Lessons from Northern Ireland

In Northern Ireland there are many fewer permanent exclusion from school than in England and Wales. It has been suggested that this may be linked to differences in the statutory schemes which regulate exclusion. This article compares the legal framework for school exclusions in Northern Ireland and England and Wales; provides a comparative analysis of the statistical data in relation to school exclusions; assesses whether the differences in the legal framework may have an impact on the propensity to permanently exclude; and considers whether there are any other non-legal factors which may explain lower rates of school exclusions. The overall objective is to see whether the legal differences which exist have a meaningful effect on the overall rate of school exclusion and to extrapolate best practice. In particular, the analysis focuses on experience of the statutory pre-expulsion consultation procedure in Northern Ireland, which has no equivalent in England and Wales.     

Academic perspectives on teaching international family law in higher education institutions in England and Wales

ABSTRACT

The increasing prevalence of family law disputes in England and Wales with an international element is well documented in the development of domestic legislation, case law and family practice. However, despite changes to the legal landscape and the academic recognition of international family law as a legal subject, it is still often disregarded within the undergraduate family law curriculum or as a standalone module. This article explores the development of international family law in England and Wales and presents the findings of a national questionnaire into whether international family law is taught as part of the undergraduate curriculum. The article also explores what barriers exist to including international family law topics. To conclude, the author offers some general advice about incorporating these topics into the curriculum to ensure that students are equipped to deal with the realities of family practice in England and Wales.     

Administrative Justice in Wales

This article examines some of the synergies between Phil Thomas’ work and the authors’ research into administrative justice in Wales. Like him, they have examined the impact of new rights-based legislation on access to justice, and also share with him an interest in connections between politics, social policy, and access to justice. The article argues that Wales is not yet taken seriously as ‘a site in which [administrative] justice is done’, and that there remains an ‘implementation gap’ when it comes to putting innovative social policy into practice. The limited development of an administrative justice culture can hamper the achievement of social and economic justice in Wales; such a culture could be fostered with leadership from the Welsh Government and the Senedd, alongside improved training for administrators, and the potential addition of ‘a just Wales’ to the well-being goals contained in the Well-being of Future Generations (Wales) Act 2015.     

The “quiet revolution” in criminal defence: how the zealous advocate slipped into the shadow

The criminal defence lawyer has been an integral component of adversarial criminal justice in England and Wales for nearly three centuries. However, over the last two decades this essential role has changed substantially, affected by a changing culture in the law and procedure governing criminal justice in this jurisdiction. This article argues that the criminal defence role has been pulled away from its traditional adversarial roots through a process of subtle and gradual change, pursued by the Government and the Judiciary. The article outlines a normative framework, entitled the ‘zealous advocate’ model, describing the ‘traditional’ role of the criminal defence lawyer; discusses ethical conflict and its growing significance; and examines how legislation, case law and funding have gradually moved the defence lawyer away from a ‘client-first’ style of representation. It concludes by considering the potentially significant implications of such a change in the role for both fair trial rights and adversarialism in England and Wales.     

The New Model Wales

The United Kingdom is currently undergoing a rapid process of fundamental constitutional change. One of the chief developments is a redistribution of law-making and governmental powers to different territories of the Union. It is a programme of devolution, as befits an unwritten constitution characterized by the doctrine of parliamentary sovereignty, and not federalism. The case of Wales, historically closely integrated with England,1 presents here its own challenges. The aim of this article is to examine the process of change for Wales, to explicate and critically assess the Welsh scheme of devolution, and to consider possible future development in a broad legal and constitutional setting.     

Cohabitation in Twentieth Century England and Wales: Law and Policy

This article reviews the complex, and sometimes conflicting, policies adopted by the law of England and Wales over the course of the twentieth century. Its aim is to highlight the fact that cohabitation is not merely a modern legal issue, but one with which both the legislature and the courts have had to grapple for decades. It argues that reform has been piecemeal and context-specific because the courts and legislature have not adopted a coherent policy toward cohabiting relationships.     

Mapping the effects of Brexit on legal education in Wales: proposals for addressing students’ concerns

ABSTRACT

Whilst the future for UK–EU relations remains to be realised, Brexit will have consequences for legal education. However, to date, neither the UK nor Welsh Governments have sufficiently addressed what those consequences will be for higher education. This paper, which documents the results of 336 student questionnaires received from law students surveyed from every law school in Wales, evidences that learners have already started to decide what they believe Brexit means for them. Amongst the numerous challenges for Welsh law schools is the opinion of current students that Brexit makes Wales a less attractive place for overseas students and lecturers, both EU and other internationals, to study and work. Meanwhile UK students studying in Wales are questioning the relevance of EU law modules, and are viewing aspirational careers within EU institutions as now being “closed doors”. By drawing upon our findings, as well as comparisons with other EU Member States, this paper proposes six areas where urgent collaboration between governments and universities is needed. Failing to address the concerns identified by this research has the potential to further threaten the internationalised education model that UK students benefit from by studying law at Welsh universities.     

Chronicling National Assembly committees as markers of institutional change

This article examines changes to the National Assembly for Wales committees and how they act as markers that help explain the dynamics of a significant and contemporaneous constitutional journey. It uses as its backdrop recent constitutional and political change in the UK, particularly that initiated by devolution. Uniquely, we draw upon management theory as well as political science to explain why changes in the focus, identity and profile of Assembly committees represent significant markers or reflectors of constitutional shifts. We suggest that examining key components within the internal architecture of parliaments at different stages of development offers an additional and complementary level of institutional analysis. Our review of the Assembly committees reveals that they have reflected the pace and shape of change in Welsh devolution, and that shifts in their profile and operation offer another insight into devolution, whilst also reflecting wider institutional and political change.     

Lessons from Roman law: EU law in England and Wales after Brexit

ABSTRACT

The experience of Roman law in legal education in England and Wales may serve as a cautionary tale for EU law post-Brexit. Similarly, past debates as to the position of Roman law in the curriculum may also be instructive in the EU law context. After tracing the history of the teaching of Roman law in England and Wales, this article posits first that the factors that appear to have caused the decline of Roman law could apply equally in the context of EU law. Secondly, based on both pragmatic and liberal education arguments that have historically been proffered for the study of Roman law, it advances arguments for the retention of a compulsory stand-alone EU law module in England and Wales after Brexit. To this end, the paper contends that the arguments for the retention of EU law in legal education are more robust than those asserted traditionally in favour of Roman law.     

What not to wear and other stories: addressing religious diversity in schools

This article considers the position of religion in schools in England and Wales in light of the recent decision in The Queen on the application of SB v Headteacher and Governors of Denbigh High School. This held that the refusal to allow a pupil to wear the jilbab was a breach of her rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and the Human Rights Act 1998. It contrasts approaches based on human rights principles with those based on discrimination law principles, highlighting overlap and inconsistency between both the definitions applicable to different forms of discrimination and the position of teachers and pupils. It concludes that the law is in urgent need of rationalisation to provide consistency.     

‘Working’ the international child protection case: a snapshot of local authorities’ experiences within an evolving legal context

Child protection proceedings often concern children with international connections. In recent years, the courts of England and Wales have handed down a number of significant judgments examining the application of international legal instruments (in particular Brussels IIa) to care proceedings. This article considers the impact of court judgments on the practical ‘working’ by Local Authorities of international child protection cases. A case study was conducted, oriented by socio-legal theory, consisting of a small number of qualitative interviews with Local Authority lawyers and social workers. The article concludes that some judgments have acted as a catalyst to change working practices for Local Authorities. However, international child protection cases present a variety of challenges for Local Authorities, and judgments provide an imperfect site for the provision of procedural and substantive guidance in this complex area. Further, there was often a tension between the need to conscientiously adhere to such guidance, and the welfare needs of the children with whom the Local Authority was concerned.     

Professional responses to ‘parental alienation’: research-informed practice

ABSTRACT

Parental alienation was historically a term rejected by courts in England and Wales, but lawyers and social workers have noted an increase in the incidence of its use, possibly driven by campaign groups and media narratives. The two statutory services that provide independent social work advice to courts in England and Wales, respectively, on children’s best interests in parenting disputes, have taken different approaches to developing practice guidance in response to concerns about the recent use of alienation terminology. A review of international research and domestic case law was undertaken as part of the development of guidance in Wales. This review revealed a dearth of reliable evidence on the concept of parental alienation, its prevalence, effects and measures for intervention. This article builds on that review and recent developments to discuss the progress being made in practice to counter myths about alienation and considers how best to support practitioners in resisting pressures to conform to these powerful narratives.     

Medieval Welsh Law and the Mid-Victorian Foreshore

In 1862 a text of medieval Welsh law, attributed to the tenth-century king Hywel Dda (Hywel the Good), was cited as part of the defence in a case, Attorney General v Jones, concerning disputed foreshore rights in Anglesey, north Wales. This article aims to explain why and how Welsh law, effectively abolished by the Acts of Union of 1536–43, was deployed as evidence in the case and how far this marked a readiness to accommodate the distinctive legal heritage of Wales within the framework of the nineteenth-century common law. As well as analysing the legal arguments presented, the article seeks to assess the broader significance of the case by setting it in the contexts of the Crown's increasingly vigorous claims to foreshores, the circumstances and attitudes of the real defendant, William Bulkeley Hughes, and antiquarian study of the medieval Welsh law-texts, including their use in previous mid-Victorian foreshore disputes.     

Manx Law: A Contribution from the Isle of Man*

This article provides a rare insight into the legal system and jurisprudence of the Isle of Man by the island's Second Deemster.

The author describes, inter alia, the judicial structure, sentencing and impact of international jurisprudence on the work of the judiciary of the Isle of Man, before outlining the island's constitutional position with the United Kingdom and with England and Wales.

The author argues against intellectual and judicial insularity: ‘Laws should be developed and problems solved by reaching out for knowledge and solutions that may be provided by approaches from jurisdictions beyond our local frontiers’. However, in reaching out to foreign jurisdictions, it is emphasised that account must be taken of local history, traditions, laws and needs.     

A Challenge for Police-Community Relations: Rethinking Stop and Search in England and Wales

This article presents research carried out as part of a government research programme looking at how police tactic of 'stop and search' in England and Wales. For many years, figures which have shown a higher rate of stop and search of minority ethnic groups, particularly black people, have provoked much controversy, and have been seen by many as a manifestation of police racism. This article reviews the way in which stop and search impacts on public confidence, with particular reference to those from minority ethnic groups. It goes on to explore its role within policing, including an examination of its effectiveness against crime and the evidence for racism in police practice. Following from this, it considers how stop and search can be used in a way that minimises negative impacts on the community and maximises its effectiveness against crime.     

The Law and Incapacity Determinations: A Conflict of Governance?

This article will consider the highly charged questions raised by two major sets of law reforms in England and Wales, the Mental Capacity Act 2005 and the Mental Health Act 2007, which, although applying to closely related clinical populations, proceeded along entirely separate legislative paths. By justifying its proposals for reform of mental health legislation on the grounds of 'risk', the Government failed to take into account the implications of enforced treatment on patients who may retain decision-making capacity.     

Reversing the ‘Tragedy’ of the Commons? Sustainable Management and the Commons Act 2006

The Commons Act 2006 is the first statute since the Commons Registration Act 1965 to address the problems associated with the management of common land in England and Wales. A key focus for the 2006 Act is the introduction of mechanisms for the sustainable management of common land, including self‐regulatory commons councils. This article examines the ‘sustainable’ management of common land in historical and contemporary perspective. It sets the 2006 Act, and the sustainable management of common land, in the wider context of the ongoing debate triggered by Hardin's ‘Tragedy of the Commons’ and subsequent institutional and post‐institutional scholarship on common pool resource management. It uses historical and qualitative research data drawn from three case studies to demonstrate the irrelevance of Hardin's thesis in an English context, and identifies the Commons Registration Act of 1965 as the true ‘tragedy’ of the English and Welsh commons. The case studies also illustrate the challenges posed by the introduction of legal mechanisms to promote the ecologically sustainable management of the modern commons, and inform the critique of the Commons Act 2006 developed in the article.