Wales: a separate jurisdiction in the making? Part two

In the first part of this article, attention was drawn to the increasing relevance of the exercise of the law-making powers vested in the Welsh assembly government, as devolution in Wales gathers pace.

Embracing change

On 1 May 2014, the Social Services and Well-being (Wales) Act 2014 received royal assent. It is intended that its provisions will be fully introduced by April 2016. It is a far-reaching piece of primary legislation, which will transform the provision of social care in Wales.

Enacted under the broad devolved field of ‘social welfare’ it embraces (among other things) ‘social services, the protection and well-being of children (including adoption and fostering) and of young adults, vulnerable persons and older persons, including care standards’.

Under section 5, it requires persons exercising functions under the Act to promote the well-being of people who need care and support and carers who need support. Under section 2(2) the term ‘well-being’ is defined very broadly and includes: (a) physical and mental health and emotional well-being; (b) protection from abuse and neglect; (c) education, training and recreation; (d) domestic, family and personal relationships; (e) contributions made to society; (f) securing rights and entitlements; (g) social and economic well-being; and, (h) suitability of living accommodation.

In relation to children
it also includes their physical, intellectual, emotional, social and behavioural development; (thus complying with the United Nations Convention on the Rights of the Child (UNCRC) as is now required in Wales), and in relation to adults, the definition also includes control over day-to-day life and participation in work.

Section 6 places general overarching duties upon those exercising functions under the Act (which includes the local authorities of Wales) and further overarching duties specifically in relation to adults and also to children including, under section 7, having due regard to UNCRC.

Section 15 places a duty on local authorities to provide and arrange preventative services that contribute towards preventing or delaying the development of needs for care and support, as well as reducing the need for it, to minimise the effect on disabled people on their disabilities and to contribute towards preventing people from suffering abuse or neglect. It also includes a duty to reduce the need for proceedings under section 31 of the Children Act 1989 and any other proceedings against children which might lead to them being taken into care or becoming involved in High Court proceedings under the High Court’s inherent jurisdiction.

Welsh dimension

The Welsh assembly government is presently consulting on the secondary legislation proposed to place the meat on the framework of the primary legislation. The executive summaries provide clear insight into the extent of the changes and the divergence that will exist between social care law in Wales and that to be applied in England (see wales.gov.uk/consultations/healthsocialcare).

These are clearly far-reaching requirements that will feature
in litigation and demand that those involved in cases with a Welsh dimension have an understanding of the law
to be applied in Wales.

As referred to in part one
of this article, there are also proposals for fundamental changes in housing law in Wales which propose to take forward the 2006 Law Commission recommendations in that
field. The first tranche of that proposed legislation has been laid and focuses upon the mechanics of renting homes
in Wales, the second tranche is planned to introduce the radical restructuring of housing law
in Wales.

It aims to introduce a modernised and simplified legal structure, setting out the rights and obligations of landlords and tenants assisted by model agreements prescribed
by Welsh Ministers. As
the chairman of the Law Commission said in May
2013 when the legislative programme was announced: “Envious eyes are already being cast towards Wales by English-based bloggers and the specialist housing press. I can only express the hope that, in the fullness of time, England will catch up with Wales.”

Look at the detail of this proposed legislation and follow its progress on the Welsh assembly government website. It will be important. SJ

District Judge Harold Godwin is the immediate past president of the Associate of Her Majesty's District Judges