A lack of Welsh case law, a shortage of lawyers and ‘caution around litigating’ mean there is a growing gap in Wales between people’s rights in theory and their rights in reality, delegates were warned at an event staged by North Wales Community Law (NWCL) and co-produced with LAG.

NWCL operations director Katherine Adams said that, along with the rest of the UK, Wales has been afflicted by years of legal aid cuts, which have ‘damaged the ecosystem’ legal aid firms, but that these difficulties are compounded by issues specific to the region. Public bodies in Wales are escaping accountability as a result, she said.

An acute shortage of lawyers means new laws passed by the Welsh parliament intended to give greater rights to tenants and others remain relatively untested and underused, Adams explained.

Her comments were echoed by Welsh public law and housing barrister Owain Rhys James, who cited the Renting Homes (Wales) Act 2016, which he described as ‘quite an accessible Act on the face of it, in terms of being able to seek redress, with the county court able to review decisions on public law grounds’. Although the Act provides ‘a dozen or so avenues’ for tenants to take matters to court, the lack of legal aid means most individuals seeking to use it ‘are on their own’.

As a result, the Act is not enabling tenants to enforce their own rights or seek damages and declarations, as was envisaged. It is, however, being used by landlords in relation to fitness for human habitation litigation, who are employing its provisions to seek ‘declarations from the court as to their rights and obligations’. ‘There is nothing inherently wrong with that,’ James added, ‘but it does identify something of a chasm between rights in theory and enforcing them in practice.’

Adams said there is ‘caution around litigating’ within the community and local organisations. James agreed: ‘There is a general feeling that civic society in Wales is quite small and not particularly litigious as a community. People are generally quite nervous about litigating.’ Local authorities can also be reluctant to use their own statutory powers to protect individuals, he said.

Where legal challenges are brought, said James, local authorities or government tend to respond by wheeling out the ‘litigation big guns far sooner, far readier, in Wales than you might see with local authorities in England’. ‘Anecdotally,’ he continued, ‘that does have an effect on stymieing cases and claims that would make their way up to the higher courts.’

As a result, 18 months after the Renting Homes (Wales) Act came into force, there is still a long way to go before it has ‘real teeth’, and according to James, lawyers wanting to give advice are left ‘with little if any guidance from higher courts on any issues of principle’.

James added: ‘It is important people are aware of what their rights are and are able to access advice, and that people are prepared to argue those borderline cases, which, if not successful, can either identify a broader systemic issue or provide some guidance and assistance for those that follow.’