Theodore Huckle


Theodore Huckle is a Welsh barrister and was the Counsel General for Wales, the Welsh Government's Law Officer, between 2011 and 2016.

Personal

Huckle lives near Cardiff with his wife Alison and four daughters: Manon, Thea, Imogen and Fleur.

Early life and education

Huckle was brought up in Blaenavon by his mother Sylvia with his brother and two sisters. He was educated at primary and junior schools in Blaenavon and at Jones' West Monmouth Grammar School, Pontypool, before reading Law at Jesus College, Cambridge, where he took B.A., M.A. and LL.M. degrees. He is a Titular Exhibitioner of Jesus College. He was admitted to Lincoln's Inn as a Hardwick Entrance Scholar and was in 1984 awarded the Megarry Major Scholarship.

Career History

Huckle was called to the Bar in 1985. In 2008 he was instrumental in establishing Civitas Law chambers as the first specialist civil law chambers in Wales. He was appointed Queen's Counsel in 2011. With the agreement of the First Minister of Wales and the National Assembly for Wales Huckle continued in private practice as a QC during his appointment as Counsel General. In May 2015 he joined Doughty Street Chambers in London as a tenant whilst remaining a door tenant of Apex Chambers in Cardiff.
In 2012 Huckle was elected a Master of the Bench of Lincoln's Inn.
In 2016 Huckle became the General Editor of the Butterworths' Personal Injury Litigation Service.
In the same year he became a Visiting Professor of Law the King's College, London.
Huckle’s private practice profile includes complex clinical disputes and personal injury, including occupational illness/disease litigation, spinal, head injury and clinical negligence; public law, human rights and commercial matters including employment, fraud and professional negligence. Huckle is accredited as a mediator by ADR Group and QC Mediation, and as an arbitrator as a founder member of PIcARBS.
Huckle appeared for the Claimant Miss Baker in the first case of industrial "deafness" to be considered in the Supreme Court : Baker v Quantum Clothing UKSC 17; 1 WLR 1003; ICR 523; PIQR P14. He subsequently appeared in three UK constitutional references to the Supreme Court as Counsel General for Wales, leading respectively Clive Lewis QC, Elizabeth Laing QC and Richard Gordon QC.

Counsel General for Wales

Huckle was appointed Counsel General Designate by the First Minister on 27 May 2011. The National Assembly for Wales gave its approval on 8 June 2011 and the appointment as Counsel General was formally made by Her Majesty the Queen on Friday 10 June 2011. The then Presiding Judge of the Wales Circuit, David Lloyd Jones J, undertook the swearing in ceremony on 13 June 2011.
Though not a Minister of the Welsh Government, the Counsel General for Wales is a member of Government under s45 of the Government of Wales Act 2006, senior and authoritative legal advisor to the Government, and its representative in the courts. The Counsel General has certain functions to be exercised independent of the Government, including the ability to refer Bills of the National Assembly to the Supreme Court for a decision on their legislative competence, which power Huckle exercised on one occasion.
The office of Counsel General is at ministerial level and the Counsel General is bound by the Ministerial Code. The Counsel General may not be removed from the position except by resolution of the National Assembly for Wales itself.
Huckle is the first and, to date, only person not an Assembly Member to hold the office of Counsel General to the Welsh Government as a member of the Government and the only practising lawyer to hold this office. There was considerable interest in his appointment from outside Cardiff Bay, which was widely seen as a reflection of the newly enhanced legislative powers of the National Assembly and a desire on the part of the First Minister to bring additional legal rigour to the development and passage of legislation by the Assembly. He attended Cabinet at the invitation of the First Minister of Wales, Carwyn Jones. Huckle left the role in May 2016, at the end of the term of the Third Assembly and upon the formation of a new Welsh Government.

Work as Counsel General

Axa v Lord Advocate UKSC 46; 3 W.L.R. 871
In one of his first actions as Counsel General for Wales, Huckle appeared in the Supreme Court of the United Kingdom in this case, which was an insurers' challenge to the validity of the Scottish Parliament’s Act which overturned the ruling in the Pleural Plaques cases and made pleural plaques a sufficient injury to attract compensation. There were a number of issues considered by the Supreme Court but of particular interest for the Welsh devolution settlement was the fact that the validity of the Scottish Act was questioned on common law grounds: it was argued by the appellants that Acts of the Scottish Parliament are open to judicial review as an unreasonable, irrational and or arbitrary exercise of the legislative authority conferred by the Scotland Act 1998 on the Scottish Parliament.
If that contention was held to be right, then Acts of the National Assembly for Wales would similarly be open to judicial review on these grounds. Accordingly, the First Minister of Wales intervened in the appeal in the Supreme Court in order to make representations on the scope of common law challenge so far as Acts of the Assembly were concerned. Huckle appeared before the Supreme Court to make oral representations on behalf of the Welsh Government. This was the first time that the Counsel General for Wales has appeared on behalf of the Welsh Government in the highest court in the land. Lord Hope warmly welcomed the Counsel General to the Supreme Court for the first time in his new office. Huckle argued that the National Assembly for Wales was a democratically elected legislature and that the limits of its powers were set out in the Government of Wales Act 2006 which expressly enables the Assembly to make laws in the same way that the Westminster Parliament makes laws, so that the laws of the Assembly are to be viewed as equivalent in status to those of Westminster provided the Assembly is otherwise acting within the scope of its devolved authority. The Courts could not therefore impose additional limitations that fell outside the scope of the Scotland Act 1998 and, by implication, also the Government of Wales Act 2006.
In their judgment, the seven Supreme Court Justices unanimously agreed with the position of the Welsh Government.Their Lordships held that Acts of the Scottish Parliament could not be subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness. Acts of the Scottish Parliament would only be open to challenge at common law on the grounds that they were not compatible with the rule of law or that they infringed fundamental rights. The Supreme Court confirmed that the same must apply equally to Acts of the National Assembly for Wales. Whilst the case focused on devolved legislation, some of their Lordships restated the possibility that even Acts of Parliament could be challenged where the legislation was such as to undermine the rule of law or fundamental rights, although this remains formally undecided.
Access to and rationalisation of Welsh Law
In his first formal statement to the National Assembly for Wales on 4 October 2011, Huckle announced Welsh Government's project to ensure easy public access to the increasing statutory law emanating from the National Assembly, and a review of methods of rationalisation and consolidation of those laws with existing provisions of the law of England & Wales.
Separate legal jurisdiction
On 27 March 2012, Huckle launched a public debate on whether Wales should be a separate legal jurisdiction by making a formal statement to the National Assembly for Wales and issuing a Welsh Government Consultation. He leads for Welsh Government on this issue in order to promote and facilitate the public debate.
Reference to the Supreme Court of the Local Government Byelaws Bill - Attorney General v National Assembly for Wales Commission UKSC 53; 1 A.C. 792; 3 W.L.R. 1294; 1 All E.R. 1013; Times, December 31, 2012
Huckle appeared for the Welsh Government before the UK Supreme Court in response to the first Reference of this type under s112 of the Government of Wales Act 2006 by the Attorney General for England and Wales of the Local Government Byelaws Bill 20, the first of the new Welsh Acts to be passed by the National Assembly. The Bill provided for a new mechanism for creation of byelaws but without ministerial approval either in Cardiff or, crucially to the Reference, in Westminster, thus repealing the previous confirmation power of a Minister of the Crown. The Justices unanimously agreed that the Bill was within the competence of the National Assembly because the removal of the Minister of the Crown's function was "incidental to or consequential on" the inception of the new system and the removal of the concurrent function of the Welsh Ministers.
Reference to the Supreme Court of the Agricultural Sector Bill - Attorney General for England and Wales v Counsel General for Wales UKSC 43; 1 W.L.R. 2622; 4 All E.R. 789; Times, July 14, 2014
The National Assembly passed this Bill to reinstate a form of Agricultural Wages Board after the abolition of the AWB across England & Wales by the Enterprise and Regulatory Reform Act 2013, notwithstanding the provisions of the Public Bodies Act 2011 which provided for the abolition of such "quangos" but subject to the consent of devolved legislatures where their legislative competence was engaged. Agriculture is a devolved subject under GOWA 2006, but the coalition government in Westminster contended that abolition of an agricultural wages board did not "relate to" agriculture at all so as to engage the Assembly's competence within ss107-8 of GOWA 2006, but rather to "employment" which, it contended, was not a devolved subject, notwithstanding that it is neither described in the competence provisions of Schedule 7 to GOWA 2006 as a subject nor as an express exception to devolved competence, nor in the separate express restrictions on competence. The treatment of employment or employment law rights is thus different in the Welsh settlement to that of the Scottish, where employment law and rights are matters reserved to UK Parliament by the provisions of the Scotland Acts. Huckle again appeared for the Welsh Government to argue that the Assembly does have competence to legislate with respect to employment rights and law provided that the provisions doing so also "relate to" a devolved subject, in this case agriculture. The Supreme Court agreed and the reference was rejected unanimously by the 5-Justice panel.
Reference to the Supreme Court of the Recovery of Medical Costs for Asbestos Diseases Bill UKSC 3; A.C. 1016; 2 W.L.R. 481; 2 All E.R. 899; H.R.L.R. 9; Lloyd's Rep. I.R. 474; 143 B.M.L.R. 1
Huckle referred this Bill for decision, to date the first and only exercise by a devolved law officer of the power to refer a Bill of the devolved legislature for decision. He appeared on the Reference which considered the competence of the National Assembly to pass a Bill providing for the recovery of medical costs from compensators in claims for asbestos injury in the way provided for in accident cases under the Social Security legislation. The insurers challenged the Assembly's legislative competence generally and for breach of ECHR Art 1 Protocol 1 because of the retroactive effect of the legislation upon liabilities under employer's liability insurance contracts entered into in some cases many years ago. The Supreme Court agreed 3-2 that the Assembly did not have competence to enact the Bill at all, as its provisions did not "relate to" the national health service in Wales, and that the recovery provisions did offend against the insurers' accorded property rights. Powerful dissents from Lord Thomas CJ and Lady Hale held that the Assembly did have legislative competence generally in the area dealt with, but that Art 1 was indeed infringed by these provisions. The Bill accordingly fell. On the minority view it would likely have been possible to amend it in accordance with s114 of GOWA 2006 to make it Art 1 Protocol 1 complaint.

Professional associations

Huckle is the Executive Committee Member for Wales of the Personal Injury Bar Association. He has been a member of the Association of Personal Injury Lawyers, Action Against Medical Accidents, the Wales Personal Injury Lawyers' Association, the Human Rights Bar Association, the Wales Public Law & Human Rights Association, the Criminal Bar Association, and the Society of Labour Lawyers.

Appointments

Books and Practitioner reference works
Articles