As we progress into the twenty-first century, Wales is acquiring a new identity and greater legislative autonomy. The National Assembly and the Welsh Government have power to create laws specifically for Wales. In parallel, the judicial system in Wales is acquiring greater autonomy in its ability to hold the Welsh public bodies to account. This book examines the principles involved in challenging the acts and omissions of Welsh authorities through the Administrative Court in Wales. It also examines the legal provisions behind the Administrative Court, the principles of administrative law, and the procedures involved in conducting a judicial review, as well as other Administrative Court cases. Despite extensive literature on public and administrative law, none are written solely from a Welsh perspective: this book examines the ability of the Welsh people to challenge the acts and omissions of Welsh authorities through the Administrative Court in Wales.
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Administrative Law and the Administrative Court in Wales
By David C. Gardner
University of Wales PressCopyright © 2016 David C. Gardner
All rights reserved.
A chapter that discusses Welsh history in a legal textbook must be a chapter about context. The primary purpose of this chapter is to give the reader the background knowledge to understand the following chapters in their proper context. However, whilst it is not discussed in great length in this chapter, an analysis of Welsh history can serve a secondary purpose for this book. It is important to keep in mind that Welsh legal autonomy is currently on an upward trend. The primary legislative powers possessed by the National Assembly for Wales in the current devolution settlement represent greater legal autonomy for Wales than has been present for centuries, but the present position is not the high or low water mark. Any scholar should keep in mind that the power to make its own laws is something that, over time, Wales has entirely possessed and entirely lost. This chapter will touch on this point, but only briefly, the point not being integral to the understanding of the working of administrative law and the Administrative Court in Wales.
PREHISTORY AND THE ROMANS
Prehistory A theory of the twelfth-century cleric and historian Geoffrey of Monmouth, which is as well known as it is discredited, is that the first people to populate the British Isles were descendants of Troy. Whether we believe Geoffrey of Monmouth's creative study or not there have been human beings in the land we would call Wales for hundreds of thousands of years. From around 1000 BC, due to increasing population growth, the competition for land became fiercer. This era is also the time of the first archaeological evidence of the spread of the Celts across Europe. The exact date that the Celts came to Wales is unknown, but archaeological finds certainly indicate a presence from around 600 BC. There is some evidence to suggest that tribal kingship existed alongside rule by aristocracy.
In AD 43 the Roman army invaded mainland Britain. By AD 48 battle had begun with the tribes that inhabited the land that would one day be Wales. There were, broadly speaking, six Celtic tribes that covered the area (although it seems likely that there were some smaller tribes the names of which have been lost to history), the Dobunni, the Silures, the Demetae, the Ordovices, the Cornovii, and the Deceangli. After thirty years and at least thirteen separate military campaigns, the conquest of the area that would become Wales was complete.
Not all areas were deemed sufficiently civilised in Britain to obtain civitas status. There is evidence to suggest that some tribes integrated more effectively than others. The Dematae and the Silures in what would become South Wales blended effectively with the Roman occupiers. The Ordovices and the Deceangli in what would become North Wales remained largely opposed to the occupation, never obtaining civitas status and being subject to military supervision for the majority of the Roman occupation. An important distinction must be made at this point. The Roman model of occupation was different from that of the Anglo-Saxons (in England) and the Normans (in England and Wales). The civitas structure allowed two separate national identities, British and Roman, to intertwine and form a single structure. It did not overrule, oppress, or subvert the local laws and customs, it simply provided a better administrative structure and access to Roman law, albeit that where conflict arose Roman law took priority. The system was Roman, the law was, to a large extent, local. The Celtic identity, therefore, continued to have a presence in what was almost four hundred years of Romano-British culture.
The Roman civil law system was complex. Roman private law made provision for a number of areas of law. Roman public law made provision for criminal law and rules governing property that the public had access to (such as rivers, seas, the shore, ports, bridges, harbours which were deemed not to be owned by anyone, not even the Romans). It is of note that Roman criminal law was based on penalty rather than restitution, which, whilst common in modern day society, was not the case in post-Roman Britain.
From the late fourth century and into the early fifth century the Roman presence in Britain gradually reduced. In 410 the remaining British authorities, lacking the support of a single Roman legion, sent word to Emperor Honorius and requested military support against the surrounding raiders, raiders that were staying longer and becoming invaders. The Emperor's response signalled the formal end of the Roman occupation – the Britons were to fend for themselves.
After the Empire
The Roman system of governance and law making did not disappear with the Romans. The tribes that inhabited the area now known as Wales (as well as Britain generally) were still heavily influenced by the institutional systems imposed by the Romans. It appears likely that the system of Roman governance declined slowly over the century that followed the Roman withdrawal. Lacking a central system of government, the Britons succumbed to two problems. Without the military might of Rome to deter them, the invading Angles, Saxons and Jutes slowly encroached upon what would become England, ultimately overrunning the native Britons and installing their respective legal systems. In what would become Wales, the lack of central government allowed the Romano-British ruling class to assert greater power. The most successful of these families would go on to form the Welsh (or perhaps properly at this stage, Brythonic) dynasties that would rule Wales for hundreds of years.
In the late seventh and early eighth centuries, on the border of Wales the Mercian (Anglo Saxon) Kings Aethelbald and Offa built dykes to prevent incursions by the tribes in what would become Wales. Offa's dyke ran for two hundred and forty kilometres, from Prestatyn to Chepstow, albeit in places utilising natural boundaries. On the other side it marked the edge of Wales. The dykes are significant in Welsh history as they mark a clear boundary for Wales and thus gave a physical definition to the extent of the power of the Welsh rulers and the influence of their laws. It should be noted that a distinctly Welsh national identity and legislative system had still not formed at this stage in Wales' history. The Welsh were to continue to refer to themselves as Brytaniaid until the late twelfth century, and they also referred to the land in which they lived as the Romans had done, Britannia.
THE WELSH PRINCES
Whilst the Welsh of the Middle Ages ran their own affairs, Welsh law carried with it an inherent problem that inhibited the development of a single legal code extending over all of Wales. Land rights on the death of the landowner would be divided between the sons of the landowner. The sons would jointly own the land but would divide the land in practical terms for administration. A King (or Prince) would inherit a kingdom and enlarge it throughout his life by adding other lands by marriage, conquest or further inheritance. On his death the kingdom would be divided between his sons, although the regal title itself would pass to a single son as nominated by the monarch in his own lifetime. Incidentally, the system of primogeniture practised by the Normans (who would invade England in the eleventh century), under which the eldest son would inherit lands, was a system which allowed a succession of English Kings to acquire the majority of modern Britain. During this period there were some Welsh princes that shaped the constitutional and legal context of their time by acquiring large areas of Wales.
Rhodri Mawr (the Great)
We know little of Rhodri, but we can be fairly sure that, having inherited the Crown of Gwynedd in North Wales in 844, he had an illustrious premiership that began with defeating Scandinavian invaders. Rhodri went on to acquire a large part of the lands that comprised what would become Wales, from Prestatyn in the North to the borders of Gwent and Pembrokeshire in the South. He was the first Welsh Prince to control an area as large as he did and he is generally considered to be the father of all the Welsh Princes, with all later Princes coming from his bloodline.
Hywel Dda (the Good)
During the reign of one of Rhodri the Great's grandsons, Hywel ap Cadell (later known as Hywel Dda) (910–49), an even larger part of Wales came together under one kingdom. Hywel Dda's kingdom was a kingdom that by the time of his death incorporated virtually all of Wales. It was also during this period that the native laws of Wales are traditionally thought to have been reduced to writing. Hywel Dda is said to have called together a great assembly consisting of representatives from all over the country. After forty days' debate and examination of the various laws that governed the various areas of Wales, they brought together a revised and substantive law for all of Wales. At around the same time the Anglo-Saxon kingdoms of England, under the Kings of Wessex, were consolidating into an English kingdom with their own set of laws, thus representing a split in national identity and laws – from the Roman influenced Brytaniaid and tribal customs, to distinct and separate Welsh and English laws. This said, there was still a distinct link between the thrones. Hywel Dda attended the English King's council (the Witan) and did homage. He was named in treaties of the time with the title 'under king'.
Public law, under the laws of Hywel Dda, did not represent the system of obligations, judicial checks and balances that it does today. One of the King's citizens could not challenge the decisions of the king and his officers. It did, however, incorporate a system whereby the state would protect its citizens, including a criminal code. The criminal law was detailed and largely based on a principle of restitution by compensation for offences against the person and criminal damage. Some offences, such as theft, did fall into a punitive system with capital punishment, the removal of limbs, or fines being imposed.
Gruffudd ap Llywelyn
Gruffudd assumed the control of all of Wales through conquest. He began his campaign in 1039 and by around 1057 he assumed control of all of Wales. He was the first Welsh Prince to assume a kingdom large enough to present a direct threat to the English Crown. In 1063 the ill-fated Harold Godwinson, who was not yet King of England, struck to remove this threat and Gruffudd was killed near Snowdonia on 5 August 1063. The seven years during which he ruled the whole of Wales, nonetheless, represent the one occasion in history where all of Wales was united under a single ruler and subject to no outside authority. It was perhaps the period of greatest constitutional freedom.
The Welsh Princes, the Normans and the Plantagenets
In the years following the Norman conquest of England, Wales retained its identity. The law with its roots in the laws of Hywel Dda was still in force. After the death of William I (the Conqueror) the Norman Lords who were granted the land on the edge of Wales began to encroach. In South and East Wales areas were taken by force and Norman Lords took the place of Welsh Princes. The conquered areas became known as 'the Marches'. The Marcher Lords were outside Royal authority but were nonetheless dependent on it. They were the legislative, executive and judicial authority for their land, not the King of England. It was in the Lord's court that justice was done. The Marches operated not under the Welsh law or the English law but in a third way. Welsh customs were retained but the courts often used common law procedures and allowed access to the writs that were a feature of English law.
In his extensive work, The Acts of Welsh Rulers: 1120–1283, Huw Pryce identifies nine Welsh dynasties that made laws for Wales during the titular years; Arwystli, Cedewain, Deheubarth, Maelienydd, Glamorgan, Gwynedd, Gwynllwg, Powys, and Senghennydd. Some of these houses had only fleeting periods of independence. Arwystli and Cedewain in Mid Wales were largely subject to the authority of other dynasties, predominantly Powys and Gwynedd. Conversely, Glamorgan, Gwynllwg, and Senghennydd in South Wales were mainly controlled by the Marcher Lords.
Gwynedd and Llywelyn ap Gruffudd
Gwynedd, with its ancestral homeland lying in what is now North West Wales, is the dynasty most worthy of note as it was the most consistently powerful of the medieval Welsh dynasties.
In 1246 the leadership of the house of Gwynedd came to Llywelyn ap Gruffudd, perhaps the most famous Welsh Prince of this era. His reign began in a time of almost constant battle with the English. In 1267 Llywelyn ap Gruffudd was formally recognised by Henry III as the most powerful of the Welsh Princes and granted precedence over the other Welsh kingdoms. The Treaty of Montgomery, by which this precedence was granted, also granted Llywelyn the title 'Prince of Wales' – the first and last Welsh ruler to be formally granted the title.
Laws of the later Welsh Princes
Before reaching the end of the narrative that is Wales' greatest era of legal autonomy, it may be useful to pause and conduct a quick examination of the types of laws with which these latter Welsh Princes concerned themselves. The largest number of Welsh acts dealt with ownership of land. What is of note is that the Welsh acts of this period are specific in their terms rather than general. As well as private law a number of acts dealt specifically with terms agreed between Welsh Princes or between Welsh Princes and the English King. We may call these acts, treaties. A good example is the Treaty of Woodstock agreed between Owain ap Gruffudd, Llywelyn ap Gruffudd, and Henry III on 30 April 1247. The treaty allows for the cessation of hostilities, the recognition of the Welsh Princes' rights to land in North Wales, and the terms of homage to Henry III (which included an agreement to provide troops). An important provision in this treaty is the provision for dealing with land disputes. Under the treaty all parties agreed that the English King would be responsible for adjudicating, but that the dispute would be heard in Wales or the Marches, and would be decided according to Welsh law. Treaties agreed in Oxford (17 June 1258) and Montgomery (22 August 1260) provided for a further truce between Llywelyn and Henry III. Disputes as to any alleged breach of the treaties would be adjudicated upon by twelve trustworthy men. This is significant in terms of the fact that the Welsh system of law did not incorporate a form of trial by jury; this was an English method of dispute resolution. The Treaty of Aberconwy on the other hand, agreed between Llywelyn and Edward I on 9 November 1277, confirmed the agreement in the Treaty of Woodstock and also guaranteed the right for Welsh land disputes to be decided in Wales and according to Welsh law.
The output of Welsh laws in this period was in fact relatively low. Huw Pryce, in his earlier mentioned work, gives the example that even at his most prolific Llywelyn ap Gruffudd only averaged 5.5 acts per annum. Compare this to William the Lion of Scotland (1165–1214), who averaged 12 per year, or Henry II of England who averaged over 100 letters of a legal nature per year, let alone his other legal acts such as charters or treaties. Few of the acts of the later Welsh princes were ground breaking in constitutional or public law terms. Some treaties were key in the struggle for jurisdiction between the Welsh and English Kings, but on the whole there were few acts and they mainly dealt with private land matters. In terms of the public law importance of this period the focus should not so much be on what was done, but the fact that Wales possessed the legal autonomy to do it.
The end of the Welsh Princes
In 1272 Edward I came to the English throne. On his return to England in 1274 he summoned the Prince of Wales, Llywelyn ap Gruffudd, on five occasions to do homage. Llywelyn unwisely failed to attend on each occasion. In 1276 Edward declared Llywelyn a rebel. Edward then began to reduce Welsh legal autonomy. He assumed the right to resolve land disputes between Welsh rulers according to English law; Llywelyn conversely sought to rely on the Treaty of Aberconwy, which guaranteed that Welsh land disputes would be decided by Welsh law. In the end Llywelyn's dispute would be moot as war broke out between England and Wales in 1282, before the dispute was resolved.
The war of 1282 was the last throw of the dice by a confederation of Welsh Princes. The resisting princes failed abysmally with the major player, Llywelyn ap Gruffudd, dying in a minor skirmish on 11 December 1282. He was the last Welsh Prince to hold the title 'Prince of Wales'. Edward quickly asserted his rule. The final stroke for Edward was to enact the Statute of Rhuddlan, otherwise known as the Statute of Wales, in 1284, which ushered a great many of the English common law's features into Wales. The two sets of laws becoming as close as they would until their complete union under Henry VIII, it is important to note that England and Wales did not at this point have a unified legal system. The Statute became governing law for Wales and brought in many English legal provisions, but at this time England and Wales had separate legal systems.
Excerpted from Administrative Law and the Administrative Court in Wales by David C. Gardner. Copyright © 2016 David C. Gardner. Excerpted by permission of University of Wales Press.
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Table of Contents
Note on the Text,
List of UK Statutes,
List of UK Statutory Instruments,
List of Acts of the National Assembly,
List of Assembly Measures,
List of Welsh Statutory Instruments,
List of Conventions,
List of European Treaties,
List of Cases,
Practice Directions, Notes and Statements,
1 Historical Introduction,
2 The Administrative Court in Wales: Creation and Jurisdiction,
3 Administrative Law,
4 Public Law Defendants in Wales,
5 Judicial Review,
6 Non-Judicial Review Administrative Court Procedures,
7 Consequential and Ancillary Orders in the Administrative Court,
Annex A – Part 54 Civil Procedure Rules,
Annex B – ACO Wales Listing Policy,
Annex C – Contact Details,
Annex D – Addresses for Service of Central Government Departments,
Annex E – Judicial Review Checklist,
Annex F – ACO Wales Statistics,
Annex G – Pro Formas,
Annex H – The Legal System of England and Wales,