- In addition to reasons available to all 4 regional centres in both England and Wales, there are powerful constitutional reasons for establishing a properly operational Administration Court in Wales. We summarise these reasons as follows.
- The Welsh Assembly derives its powers from various sources; powers directly conferred by the Government of Wales Act 1998 which created the Assembly, ministerial functions transferred to the Assembly under the 1998 Act, the European Communities Act 1972 which authorises the Assembly to make regulations implementing legislation made in Europe and from Acts of Parliament passed since 1998 which confer further powers on the Assembly.
- By these routes the Assembly has acquired powers to create secondary legislation. The Government of Wales Act 2006 will come into force in May 2007 and will confer on the Assembly power to promulgate “Assembly measures” i.e. the equivalent of an Act of Parliament in relation to specified matters in devolved fields. The 2006 Act also contains a mechanism which, subject to a referendum, will enable the Assembly to acquire “primary legislative powers”. (The political reality, we understand, is that this mechanism is unlikely to be triggered before 2011).
- It is difficult to gauge how far the law in Wales differs at present from that in England. However, in the field of planning, which generates a large proportion of the work of the Administrative Court in Wales, the Assembly has created a framework and policy which is unique to Wales. As far as the general statutory instruments made by the Assembly are concerned, the only firm data about the degree of divergence between the law in Wales and that in England comes from work carried out by Winston Roddick QC when he was Counsel General to the Assembly. The information that he gathered showed that approximately one third of the general statutory instruments made in 2001 by the Assembly were distinctly Welsh in character. The divergence has probably increased since then as the Assembly has grown in confidence and has gathered more powers and powers in more fields. The divergence will certainly increase after May 2007, when the Assembly makes “Assembly measures” and it would, of course, increase still further if the Assembly acquires primary legislative powers.
- However, even in the areas where the law in Wales does not differ from that in England, decisions in relation to Wales are made in Wales by the Assembly or by the ministers of the Welsh Assembly Government and a judicial review of such decisions should be heard in Wales.
- Edwina Hart AM MBE, Minister for Social Justice and Regeneration, has written to us:
“The devolution settlement has very much changed the political, social and I believe the judicial landscape in Wales. It is highly likely that over time the number of court cases relating to Welsh administration will increase as the Assembly extends its legislative powers and influence. It is likely that local authorities and others will wish to begin court cases in Wales, rather than refer them to London.”
- In addition to these constitutional reasons, there are the practical reasons that judges hearing Welsh judicial review claims need to be familiar with specifically Welsh legislation. Further, section 22 of the Welsh Language Act 1993 entitles those who desire to do so to speak in the Welsh language in any legal proceedings in Wales. Bi-lingual judges may be needed or desirable in Wales, but hearing a case in England denies those who wish to speak in Welsh the opportunity of doing so.
- We attach as Appendix F a detailed and compelling paper by Jeff Godfrey, Director of Legal Services, Welsh Assembly Government, which makes the case for a fully operational Administrative Court in Cardiff and for Welsh cases to be heard in Cardiff or elsewhere in Wales. The paper also makes a case for establishing an office for the Court of Appeal in Cardiff and for more frequent sittings of the Court of Appeal in Wales. The paper argues that there should be a principle that, except in very exceptional circumstances, cases which are started in the Administrative Court in Cardiff should be heard in Cardiff or another appropriate court in Wales, and that there should be an expectation that all cases falling within the scope of paragraph 3.1 of the Part 54 practice direction should be heard in a court in Wales.
- To much the same effect is a joint paper dated October 2006 by Public Law Wales and the Standing Committee on Legal Wales, which we attach as Appendix G. This paper gives, in section K at paragraphs 45 to 48, reasons why, in the authors’ view, the suggested use of video links for substantive hearings as a means of reconciling conflicting views as to whether a case should be heard in London or in Wales is not a satisfactory solution to the problem – see paragraph 7 for the summary conclusion to this effect.
- In large measure and with some variation, we accept and adopt the argument that there should be a strong expectation that Welsh cases are heard in Wales. We recommend that rules of court or a practice direction should provide that Administrative Court cases within the present paragraph 3.1 of the Part 54 practice direction (or a suitably modified version of it) should normally be issued in Cardiff. If they are not, they should normally be transferred to Cardiff administratively upon issue. Administrative Court cases issued in or transferred to Cardiff should be heard in Cardiff unless the court otherwise orders. For cases within paragraph 3.1, the court will only do so exceptionally. By way of explanation, we do not think that the mere fact that a case is started in Cardiff should, other than exceptionally, entitle a claimant to have it heard in Cardiff. The same applies to Birmingham, Manchester and Leeds.
- As we have already mentioned we recognise that there is something of a geographical problem with North Wales. A claimant from North Wales may consider that Birmingham or Manchester is a more convenient venue; and a North Wales local authority with a small legal department may habitually instruct solicitors familiar with local authority work in London or elsewhere. We understand if some such parties might not prefer their Administrative Court litigation to be conducted in Cardiff. It might even be said that a bias towards Cardiff might replicate in Wales some of the present disadvantages of having the Administrative Court almost exclusively in London. We understand these points, and have formulated the details of our recommendations with an eye to them. Being persuaded that Welsh Administrative Court cases within paragraph 3.1 of the practice direction should, other than exceptionally, be heard in Wales, these cases have to be administered in Cardiff since there is no case to be made for an Administrative Court office in Wales other than in South Wales. They can be listed for hearing at any appropriate centre. For cases not within paragraph 3.1 of the practice direction, claimants are free to issue them where they wish and, if an application for transfer is made, make submissions, which in an appropriate case may succeed, in opposition to the application.
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