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Housing law and the jurisdiction

8 November 2016

Friday November 5th saw one of the first legal cases brought before the courts under the Housing (Wales) Act 2014, Tovey v Rent Smart Wales. Some of you may have read my blog yesterday over at the Welsh Housing Quarterly on the case. The blog discussed some disturbing information that came to light during proceedings. Under the Housing (Wales) Act 2014 all landlords in Wales must register with Rent Smart Wales, whilst every landlord that wishes to carry out a landlord function must apply for a Landlord Licence. It has become apparent however that, with less than three weeks to go until the deadline for registration, thousands of landlords remain unregistered, meaning that they will shortly be breaking the law. The implications of this revelation are immediately obvious and concerning. The case does raise interesting questions that extend beyond housing law however. This blog will address one such question, what does Tovey v Rent Smart Wales mean for devolution, in particular for the ongoing debate on whether there is a need to establish a distinct Welsh legal jurisdiction?
In order to understand the significance of Tovey v Rent Smart Wales for the Welsh jurisdiction debate it is first important to gain an understanding of the context within which the case was heard. The case concerned an appeal from a Mr and Mrs Tovey against the decision of Rent Smart Wales the designated Licensing Authority for Wales, to reject their application for a Landlord Licence under the Housing (Wales) Act 2014. The couple, who submitted their applications to Rent Smart Wales back in November 2015 had their application rejected as a result of Mr Tovey’s unspent previous convictions for fraud. Under section 20 of the Housing (Wales) Act 2014, Rent Smart Wales are permitted to reject applications for a Landlord Licence if an individual is not a fit and proper person. The appeal was held before the Residential Property Tribunal Wales in Cardiff with both parties represented by Wales based lawyers, Rhys ab Owen Thomas of Iscoed Chambers, and Richard Grigg, an in-house solicitor at Cardiff Council.
It is generally accepted that there are three elements to a legal jurisdiction; a defined territory, a distinct body of law, and a system of courts and legal institutions. Most constitutional experts agree that Wales satisfies the first two of these requirements but not the third given that, with some exceptions, Wales does not have its own system of courts and institutions. Tovey v Rent Smart Wales would appear to support this assessment. The case took place within a defined territory; Wales. It concerned a distinct body of law; Welsh law, specifically the Housing (Wales) Act 2014. Whilst the case was heard within a court in Cardiff however, the Residential Property Tribunal does operate in both Wales and England. The work of the tribunal in Wales can be distinguished from its work in England however, given that the National Assembly does have the power to confer additional responsibilities upon the tribunal and has done so with regard to the Housing (Wales) Act 2014 and the Mobile Homes (Wales) Act 2013. It does seem doubtful however whether this is sufficient to argue that the case took place within a distinctly Welsh court.
Whilst the facts of the case seem to support the statement that Wales does not have its own distinct legal jurisdiction, it does raise questions about how sustainable it is to maintain a united jurisdiction in future. With thousands of landlords appearing to be set to break the law within a matter of weeks, the courts in Wales could be swamped with cases concerning offences that do not exist in England if Rent Smart Wales does enforce the Housing (Wales) Act 2014 rigorously. This would place unique pressures upon the legal system in Wales. With the Renting Homes (Wales) Act 2016 also set to come into force in the near future, the courts in Wales could, for the first time, see a high volume of cases appearing before them that concerns legislation that is significantly different to what is in place in England.
It may take a few years for it to become apparent whether Tovey v Rent Smart Wales was a unique case or the tip of the iceberg. If the number of cases do become numerous however the pressures placed on the courts and the legal sector in Wales when implementing this distinct body of law could further strengthen the calls to establish a distinct Welsh legal jurisdiction. The next few months and years certainly appear to be interesting times for those operating within housing law in Wales.