Researching Applicable Law in Wales – What is Unique in Wales?

By Dr. Catrin Fflûr Huws, Dr. Lloyd Roderick, and Professor Emyr Lewis

Dr. Catrin Fflur Huws is currently a senior lecturer at the Department of Law and Criminology at Aberystwyth University, specializing in issues of linguistic equality, the diversification of Welsh and English law post-devolution, and property law in a devolved context.

Emyr Lewis has recently retired from being Head of the Department of Law and Criminology at Aberystwyth University and Deputy President of the Law Council for Wales. He specializes in the constitutional and public law of Wales and minority language rights, having served for 12 years as a member of the Council of Europe’s monitoring body for the European Charter for Regional and Minority Languages.

Dr. Lloyd Roderick is the Subject Librarian for Law & Criminology at Aberystwyth University, where he teaches legal information literacy in the curriculum. He began his career in librarianship at the Institute of Advanced Legal Studies Library at the University of London and has worked in the academic, public, national, and special library sectors.

This article is intended as an introduction to researching applicable law in Wales, including a brief overview of the development of the Welsh Legal System. It should be read in conjunction with the Globalex Article: Researching the Legal System of the United Kingdom UPDATE: Researching the Legal System of the United Kingdom – GlobaLex.

Published September/October 2024

(Previously updated in January 2014, January 2017, and May/June 2018)

See the Archive Version!

1. Background

Until the 16th century, there were some indigenous Welsh laws. However, these laws did not apply to the whole of Wales. The earliest example of indigenous Welsh laws dates back to the thirteenth century, although they are associated with the tenth-century prince, Hywel Dda, and therefore known as Cyfraith Hywel or the Laws of Hywel. However, as early as 1284, the Statute of Rhuddlan had applied a modified form of English law to parts of Wales, though the Marcher Lordships and the Principality of Wales continued to use their customary laws for a long time after this. The Laws in Wales Acts of 1535 and 1542 provided that Wales would thereafter be governed by the law of England. However, a separate court system existed until 1830, known as the Court of Great Sessions. The National Library of Wales’s Crime and Punishment database contains materials relating to the Court of Great Sessions from 1730 until its abolition.

1.1.2. Welsh Contemporary Law

On an international level and as a matter of UK constitutional law, Wales is part of the United Kingdom, and therefore reference should be made to the material on United Kingdom law. On a domestic level, Wales is part of the legal jurisdiction of England and Wales, and therefore the constitutional structure, the structure of the courts, and the law-making process for legislation made by the Westminster Parliament concerning Wales are as described in relation to England and Wales in the material on United Kingdom law. However, there are significant and emergent differences to which attention must be drawn. These can be broadly categorized into two types: (1) the law which establishes Wales’ organs of government (the Senedd or Welsh Parliament and the Welsh Government), which sets out their powers and functions and governs their operation (2) the law which applies in the territory of Wales. The latter has become increasingly different from the law that applies in England as a consequence of the administrations and legislatures in Cardiff and London having different legislative priorities. The law of England and Wales is therefore in the rather anomalous, not to say paradoxical, position of being in many respects quite different in the two territories covered by that law.

1.1.3. The Development of Devolution in Wales

Before 1998, much executive power relating to Wales was entrusted to the Secretary of State for Wales, a minister in the UK Cabinet who ran a department called the Welsh Office. The Government of Wales Act 1998 transferred most functions of the Secretary of State to the National Assembly for Wales now called the Senedd, a democratically elected corporate body. Although the National Assembly for Wales could only pass secondary legislation, it also had the power to initiate Wales-only bills for consideration by the United Kingdom Parliament. Examples include the Children’s Commissioner for Wales Act 2001.

In 2006, the Government of Wales Act 2006 was passed. It abolished the National Assembly for Wales as a corporate body and established a new legislative National Assembly for Wales and, separately, an executive government comprising the Welsh Ministers. The Act devised two schemes for the new National Assembly for Wales to make primary legislation. The first of these was under Part III of the act and permitted the National Assembly for Wales to pass primary legislation known as Measures relating to certain matters, subject in practice, in most cases, to the approval of the UK Parliament. Although the procedure for getting that approval was cumbersome, several Measures were passed by the National Assembly for Wales between 2007 and 2011.

In 2011, under a referendum, Part IV of the Government of Wales Act 2006 was brought into force. This allowed the National Assembly for Wales to pass primary legislation on 20 specified areas within its legislative competence. Subsequently, The Wales Act 2017 changed the framework of legislative devolution in Wales from this conferred powers model, whereby powers are specifically devolved to the National Assembly for Wales, to a reserved powers model. In essence, this means that everything that is not reserved to Westminster is devolved to Wales – an act that mirrors the approach taken in the Scotland Act 1998, although with a greater number of reservations. The reserved matters and other restrictions on legislative competence are set out in Schedules 7A and 7B of the 2006 Act.

The National Assembly for Wales is now called Senedd Cymru or the Welsh Parliament. The legislation it makes is known as an Act of Senedd Cymru or an Act of the Welsh Parliament. The UK Parliament retains its legislative supremacy notwithstanding devolution. There is a convention that states that it will not normally legislate about devolved matters without the consent of the Senedd, but this is not legally binding, despite being codified in

Section 107(6) of the Government of Wales Act 2006.

The relationship between Wales and Westminster continues to be complicated. Several UK and Welsh Government commissions have considered the situation and made recommendations. The two most recent significant reports have been those of the Commission on Justice in Wales which recommended the devolution of policing and justice to Wales and the establishment of a distinct Welsh legal jurisdiction and the Independent Commission on the Constitutional Future of Wales.

During the period leading up to the Wales Act 2017, there were three cases heard in the UK Supreme Court about the extent of the devolved legislative powers, namely:

1.1.4. The Impact of Brexit

The departure of the United Kingdom from the European Union (EU) resulted in a series of complex and interlocking Acts of the UK Parliament whose purpose was to manage how and the extent to which laws that had derived from the period of the UK’s membership of the EU survived or were transitioned to the UK. This caused considerable controversy because, on the face of it, responsibility for laws in devolved areas such as agriculture should lie with the devolved authorities in Scotland and Wales, whereas the UK Government proposed that it should take control. In Scotland, the Scottish Parliament legislated to try to forestall this, but this attempt was largely overturned by the UK Supreme Court. A similar attempt was made in Wales, but the situation was resolved by agreement between the Welsh and UK Governments.

1.1.5. The Welsh Language

A significant area where the law in Wales diverges from England relates to the Welsh language. Use of the language had historically been excluded from government, the UK Parliament, and the Courts. Concerning the courts, a series of Acts of the UK Parliament gradually eased the prohibition on its use, By now, Section 22 of the Welsh Language Act 1993 permits the Welsh language to be used in proceedings in Wales by any party, witness, or other person who desires to speak it, and several Practice Directions and Protocols have been developed for the Civil Courts, the Criminal Courts, and the Magistrates’ Courts to explain this. HM Courts and Tribunals Service have also developed a Welsh Language Scheme pursuant to section 5 of the Welsh Language Act 1993 explaining its bilingual provision. The advent of devolution brought about a far-reaching change in the situation of Welsh as a language of government. For instance, section 156 of the Government of Wales Act 2006 and Section 5 of the Legislation (Wales) Act 2019 provide that the Senedd must enact all its legislation bilingually, with equal standing being given to both versions of the text; Section 1 of the Welsh Language (Wales) Measure 2011 provides that the Welsh language has official status in Wales and requires public and other bodies to provide bilingual services; and the National Assembly for Wales (Official Languages) Act 2012 makes provision for Welsh and English to be treated based on equality in the Welsh Parliament. The case of R (on the application of Driver) v Rhondda Cynon Taf County Council was heard initially in the Administrative Court for Wales ([2020] EWHC 2071 (Admin)), and later in the Court of Appeal ([2020] EWCA Civ 1759) explains the approach that the courts should take when interpreting bilingual legislation. Where there is a dispute as to the meaning of the legislation in the two languages, the courts must consider both versions of the legislation.

1.2. Courts and Tribunals

As is explained above and on the page for the United Kingdom, Wales is not a separate legal jurisdiction, and unlike Scotland therefore does not have separate courts from England. The general structure of the court system in Wales is therefore explained on the United Kingdom site. It should be noted however that there are special rules for the use of Welsh in Courts in Wales (see 1.1.5 above) and for determining whether cases should be heard in Wales rather than in England. There is also the Administrative Court Office for Wales in Cardiff, which deals specifically with judicial reviews in the High Court of administrative action in Wales.

Laws made in Wales may be applied and interpreted in any court in England and Wales, even if the law itself is not applicable outside Wales. Furthermore, cases decided in the courts in Wales will provide valid precedents in England, and cases decided on points of law applicable in Wales will provide persuasive precedents for situations in England where the relevant law is similar.

The Welsh devolution settlement has also created a situation where the tribunals system in Wales is in many cases very different from the tribunals system in England. In tribunals (e.g. employment, immigration, and asylum) that deal with non-devolved matters, cases originating in Wales are dealt with under the same processes as those in England and the rest of the United Kingdom, by the Tribunals Courts and Enforcement Act 2007.

Other tribunals however which fall under devolved competence and which have been repealed in relation to England continue to operate in Wales. These are the Special Educational Needs Tribunal for Wales, the Residential Property Tribunal Wales, the Mental Health Review Tribunal Wales, the Agricultural Land Tribunal for Wales, and the Adjudication Panel for Wales. The Welsh Language Tribunal is a further Wales-only tribunal. Unlike the others, this tribunal was established by legislation made in Wales. These Wales-only tribunals do not form part of the First Tier and Upper Tier tribunal structure that applies to the England and Wales Tribunals and the UK-wide tribunals (following the Tribunals Courts and Enforcement Act 2007) and instead, come under the auspices of Tribunals Wales. There is also a President of Welsh Tribunals, a senior judicial post that relates solely to Wales.

1.3. Welsh Tax Levying Powers

The Wales Act 2014 and the Wales Act 2017 confer powers on the Senedd in respect of tax levying. The Tax Collection and Management (Wales) Act 2016 creates the Wales Revenue Authority, which is the body responsible for collecting and managing Welsh taxes. Since April 2018, in Wales, the Land Transaction Tax has replaced the Stamp Duty Land Tax, and the Landfill Disposals Tax has replaced the Landfill Tax. Since 2019, limited powers to set rates of Income-Tax have been devolved. By The Welsh Tax Acts etc. (Power to Modify) Act 2022, the Senedd gave the Welsh Ministers substantial powers to amend tax laws through Regulations.

The sources of Legislation Relating to Wales’ Legislation applicable solely to Wales may emanate from the following sources at the domestic level:

  • For statutes passed by the Westminster Parliament both before and after the legislative, devolution came to Wales under the Government of Wales Act 2006 (see above). Since then, the UK Parliament has passed such laws in respect of devolved and non-devolved areas. Acts passed in non-devolved areas include Acts made with the consent of the Senedd under the convention mentioned above and (rarely, though increasingly less so) without that consent, sometimes including separate provisions concerning England and Wales. In some cases, such statutes which have been entirely or partially amended or repealed in relation to England remain in force in relation to Wales;
  • From measures and Acts of the National Assembly for Wales/Senedd;
  • From secondary legislation made by the UK Government (1) before executive devolution came to Wales under the Government of Wales Act 1998 (2) since then in non-devolved areas;
  • From secondary legislation made by the National Assembly for Wales between 1999 and 2007 and by Welsh Ministers since then.

Identifying the law that applies in relation to Wales as distinct from England therefore requires careful investigation. For this reason, the terminology ‘the law applicable in relation to Wales’ or ‘the law which applies in Wales’ is preferable to the term ‘Welsh law.’ This is reinforced by the rather curious way in which the phrase ‘Welsh law’ is used in Section A2(1) of the Government of Wales Act 2006 (‘The law that applies in Wales includes a body of Welsh law made by the Senedd and the Welsh Ministers’).

It should be noted of course that, except to the extent its legislation otherwise provides, the common law applies identically in England and Wales.

2. Sources of Law Applicable in Wales

This covers sources of law applicable in Wales following the Government of Wales Act 1998 noted in section 1. The Senedd website is the key resource for the legislative process. Official sources of Acts of the Senedd and Statutory Instruments applicable to Wales are available from the same sources as for the United Kingdom more generally, as detailed on the United Kingdom Page. The Senedd’s website also provides information on the progress of Senedd Bills, Subordinate Legislation (which includes orders, regulations, rules, schemes, and also statutory guidance and local orders), Legislative Consent Motions, and Information on Legislation.

One of the concerns regarding the law applicable in Wales is the diverse range of ways in which divergent law applicable in relation to Wales is made, as it is a combination of supranational and international law, pre-devolution law relating to England and Wales, pre-devolution law that has been amended or repealed in relation to England but not in relation to Wales, non-devolved law, laws passed by the Senedd, common law, and precedents and statutory instruments. A Law Commission report, The Form and Accessibility of the Law Applicable in Wales, published in 2015, considered amongst other matters; the need for the law applicable in relation to Wales to be updated, the need for the law applicable in relation to Wales to be consolidated, the need for commentaries on the law applicable in relation to Wales and also a need for an appreciation that regard must be had to both the Welsh and English versions of the legislation.

2.1. Sources of Welsh Legislation: Available Without Charge

This covers sources of law applicable in relation to Wales.

2.1.1. Legislation.gov.uk

Legislation exclusively or primarily applying to Wales or that may contain legislation that applies to Wales can be found at the official UK legislation website, legislation.gov.uk.

2.2. Law Wales

In 2015, the Welsh Government launched its Law Wales website. In light of concerns about the fact that the sources of law applicable in relation to Wales in the public domain were not being updated sufficiently frequently and that commercial publishers were not providing access to bilingual versions of legislation made by the National Assembly for Wales, it was felt necessary to develop Law Wales as a web platform for the law applicable in relation to Wales. This evolved from a site called Welsh Law Online, which was hosted by Cardiff University School of Law and Politics for a few years. The site aims to provide commentaries on the law applicable in relation to Wales and up-to-date bilingual versions of the law applicable in Wales, and it is produced in collaboration with Westlaw UK.

2.3. Case law

As the jurisdiction is that of England and Wales, there are no separate sources of Welsh case law, and reference should be made to the United Kingdom site for further information on case law relating to Wales.

2.4. Bibliographic Information on Devolution in Wales

The Senedd and Devolution in Wales: A Bibliography is produced by the Library of the Senedd. It is updated frequently and covers different aspects of devolution including its history, the various commissions, including the Silk Commission, and importantly a section on Law.

The Senedd’s page, 25 Years of Welsh Law-Making, also lists a bibliography of articles and materials on devolution in Wales.

OSCOLA (Oxford University Standard for Citation of Legal Authorities)

OSCOLA is the referencing style for the accurate citation of legal authorities. It is edited by Oxford Law faculty and an advisory board. It provides the following information relating to Wales on p. 25:

  • Acts of the National Assembly for Wales/Senedd are cited by short title and year.
  • Acts of the Senedd are cited by short title and year, followed by Act of Senedd Cymru (asc or dsc) number in brackets.
  • Infrastructure (Wales) Act 2024 (asc 3).
  • Welsh measures are primary legislation of the Welsh Assembly made up to 2020. They are cited by short title and year, followed by the National Assembly of Wales Measure (nawm or mccc) number in brackets.
  • Learner Travel (Wales) Measure 2008 (nawm 2).
  • Mesur Teithio gan Ddysgwyr (Cymru) 2008 (mccc 2).
  • Cite parts of Welsh Measures as for parts of UK Parliament statutes (section 2.4.2).
  • p. 28 (section 2.5.4 Wales).

Statutory instruments of the Senedd are cited in the same way as other statutory instruments, but the SI number is followed by a Welsh SI number in brackets. Statutory instruments made at Westminster that apply to Wales are cited in the same way as UK statutory instruments (see sections 2.5.1 and 2.5.3).

  • The Learner Travel (Wales) Measure 2008 (Commencement No 2) Order, SI 2009/2819 (W 245).
  • Gorchymyn Mesur Teithio gan Ddysgwyr (Cymru) 2008 (Cychwyn Rhif 2) SI 2009/2819 (Cy 245).

Citing the Law: Cardiff University has produced an online tutorial to accompany OSCOLA, entitled Citing the Law, which includes a section on Welsh Legislation:

  • Acts of the National Assembly for Wales/Senedd.
  • Measures of the National Assembly for Wales: the primary legislation made by the Assembly between 2006 and 2011 is cited by a short title followed by the year, then the National Assembly for Wales (nawn) number in round brackets. If writing in Welsh, use the Welsh title of the measure and the abbreviation mccc. Example: Red Meat Industry (Wales) Measure 2010 (nawm 3).
  • Statutory Instruments: Statutory Instruments are cited by title, year, then SI number followed by a Welsh SI number, prefixed by W (or Cy if writing in Welsh) in round brackets. Example: The Tuberculosis (Wales) Order 2011, SI 2011/692 (W 104)

4. Secondary Sources

4.1. Books and Journals

  • Welsh Legal History Society/Cymdeithas Hanes Cyfraith Cymru: Includes Research & resources e.g. Carmarthen Gaol Felons Register 1844-1871, which is searchable, and has 1447 records, some with photographs.
  • Richard W. Ireland, Land of white gloves?: a History of Crime and Punishment in Wales. London; New York: Routledge, Taylor & Francis Group, 2015.
  • The Cambrian Law Review: The Cambrian Law Review has been published annually by the Department of Law & Criminology of Aberystwyth University since 1971.
  • Wales Law Journal—Cylchgrawn Cyfraith Cymru. Cardiff, Vol 1, 2001—Vol 2, 2002-2003: To reflect the impact of policy on the development of law in Wales, there was a change of title in 2003 to Wales Journal of Law and Policy – Cylchgrawn Cyfraith a Pholisi Cymru. Cardiff, Vol 3, 2004 – Vol 4, 2005 when it ceased publication.
  • Statute Law Review 2012 Volume 33 Number 2 Oxford University Press: This special issue is a significant contribution to the commentary on Welsh law, containing eleven articles. Articles frequently appear on matters of the Law in Wales.
  • Thomas Glyn Watkin and Daniel Greenberg, Legislating for Wales, Cardiff: University of Wales Press, 2018.
  • Other journals that have included Wales-specific articles in recent years include the Modern Law Review, the European Human Rights Law Review, and the Northern Ireland Legal Quarterly.

4.2. Law Dictionaries—English/Welsh

  • Robyn Lewis, Geiriadur newydd y Gyfraith (Saesneg-Cymraeg): The new legal dictionary (English-Welsh). (Llandysul: Gwasg Gomer, 2003. Previous editions in 1972, 1992, 1996). The editions have grown substantially in size from 226 pages in 1972 to 1234 pages in 2003 reflecting the growth of law-making powers within Wales through devolution and the establishment of the National Assembly for Wales.
  • Dewi Llyr Jones, Delyth Prys, Owain Lloyd Davies (eds), Geiriadur Termau’r Gyfraith: Dictionary of Legal Terms. (Bangor: Bangor University, 2008). This is aimed primarily at students studying law through the medium of Welsh and concentrates on subjects required for a Qualifying Law Degree in England and Wales.
  • Timothy Lewis, a glossary of medieval Welsh law based upon The Black Book of Chirk. (Manchester: University Press, 1913).

5. Law Schools in Universities in Wales

The routes to qualification in Wales are the same as for qualification in England. However, there are seven law departments/schools in Wales offering degrees in Law, as well as the Open University, which has an office in Wales.

6. Law Society Wales Office

The Law Society in Wales undertakes some Wales-specific work and resources.