The gap in the law in England and Wales

Huw Williams examines the increasing divergence between the law in England and Wales and considers what this means for local authorities.

Local authorities in England and Wales provide similar services to their local communities but the increasing divergence between the law in England and Wales means there are now significant differences in the way they operate and the issues they need to address.

The divergence has grown over as the Welsh devolution settlement has matured since the original Government of Wales Act 1998 and will shortly expand further with the adoption of a reserved powers model of devolution to be implemented in the near future under the Government of Wales Act 2006 as amended by the Wales Act 2017. The National Assembly and the Welsh Ministers have used their legislative and executive competence to pursue some significantly different policy approaches from those which apply in England.

One example is school education. In England, the role of local authorities has lessened, as legislation has made provision for different types of schools, such as academies and free schools. There are none of those types of schools in Wales, which continue to be largely local authority maintained or faith-based schools and the establishment and organisation of schools must be carried out in accordance with a statutory code issued under the School Standards and Organisation (Wales) Act 2013.

In housing, a Bill currently going through the National Assembly for Wales [1] will, if enacted, repeal the right to buy and the right to acquire social housing in Wales. This is intended to safeguard social housing stock in Wales. By contrast, at the time of writing, the right to buy still applies in England and pilot schemes have tested the idea of extending it.

In town and country planning, the Planning (Wales) Act 2015 has made significant changes to various pieces of planning legislation as they apply in Wales, including the creation of a statutory national Development Framework at the apex of the statutory planning system. The Law Commission has recommended that there should be a consolidated planning code for Wales and a consultation paper is promised later this year.

There are also differences in local authority governance. English local authorities may have an executive or committee system form of governance, or arrangements prescribed by the Secretary of State. Local authorities in Wales must have executive arrangements and do not currently have the option of committee system governance, although a Welsh Government White Paper [2] has suggested that this should be introduced. In England, the Localism Act 2011 changed the monitoring of member conduct from a heavily prescribed system to a system where much is left to the discretion of each local authority and the sanctions for poor conduct are very limited. In Wales the legislation still imposes detailed requirements, including an obligation for local authorities to adopt codes of conduct based on a national model, investigation by the Public Services Ombudsman for Wales of allegations of breaches of code of conduct, and meaningful sanctions such as suspension from office as a member.

Even when an area of law is not the responsibility of the Welsh Ministers, there may be some controversy as to what this means in practice. Employment is not generally devolved but there are devolved matters such as local government and agriculture with workforces which are affected by employment legislation. The Welsh Ministers may seek to introduce legislation in that context, which could lead to disputes with the UK Government over legislative competence. This happened with the Agricultural Sector (Wales) Act 2014, which makes provision for the terms and conditions of agricultural workers. Following a reference by the Attorney-General, the Supreme Court found that this was within the legislative competence of the National Assembly for Wales [3]. The UK Government passed the Trade Union Act 2016, which made changes to the law regulating the calling of industrial action by trade unions. In order to protect the continued delivery of public services in Wales, the Welsh Ministers consider it necessary to disapply provisions of that Act which apply to public services. They have introduced the Trade Union (Wales) Bill to achieve that effect.

The differences in laws in England and Wales and the potential for these to increase mean that those who advise local authorities in the two countries need to be familiar with all relevant legislation applicable in both and adept at applying particular details of relevant legislation to particular transactions. For local authorities themselves, the divergence may make it more difficult and less attractive than previously for officers to move between authorities in England and Wales and for authorities to benefit from sharing experience and expertise. At present England and Wales remains a single legal jurisdiction and there are still areas of devolved activity where the law and legislation remains the same in both Wales and England but it is no longer appropriate or safe for those working with local authorities to assume that they can take a uniform approach across England and Wales.

Huw Williams is a Partner at Geldards LLP. He can be contacted on 029 2039 1765 or This email address is being protected from spambots. You need JavaScript enabled to view it..