by Dylan Hughes (First Legislative Counsel, Welsh Government) and Huw G Davies (Senior Legislative Counsel, Welsh Government)1
1. The National Assembly for Wales has only recently embarked on the enterprise of subjecting human conduct to rules. The difficulties faced by all law making institutions in ensuring that laws are accessible are now faced by the fledgling law makers of Wales – along with some problems peculiar to the Welsh journey towards self-governance that are of particular concern. This article seeks to explain the access to legislation issues that have arisen following devolution of legislative power to Wales and to contribute to a discussion about what might be done to address them.
2. In the Morality of Law2 , Professor Lon Fuller notes eight ways in which the enterprise of creating and maintaining a system of law can fail:
- failure to achieve rules at all;
- failure to publicise, or at least make available to the affected party the rules he or she is expected to observe;
- abuse of retrospective legislation, which creates uncertainty and undermines the integrity of rules;
- failure to make laws understandable;
- enactment of contradictory rules;
- enactment of rules that are impossible to comply with;
- such frequent changes on rules that the subject cannot orient his or her action by them;
- failure of congruence between the rules announced and their actual administration.
3. Fuller remarks that total failure in respect of any of them “does not simply result in a bad system of law; it results in something that is not properly called a system of law at all, except perhaps in the Pickwickian sense in which a void contract can still be said to be one kind of contract” 3. In all parts of the world where people are fortunate enough to be governed under the rule of law, no perfect system has yet been devised. There are degrees of success or failure in each of the eight ways identified by Professor Fuller and there is always room for improvement.
4. The situation in the United Kingdom, or Wales alone, is certainly not one of total failure in respect of any of these directions, but there is clearly room for improvement in the accessibility of legislation, which, in Fuller’s terms, we take to be principally about its effective publication and the extent to which it is understandable. The current concerns about the accessibility of the law in the United Kingdom are familiar to those with an informed interest in statute law and are eloquently described by the late Lord Bingham in his book, the Rule of Law4 . The systems and circumstances that adversely impact on the accessibility of the law from a Welsh perspective arise mainly from aspects of the legal and political system that Wales has in common with England. But devolution of the UK Parliament’s legislative power to Wales has undoubtedly brought additional challenges in making legislation accessible to those wishing to know the law applicable to Wales.
5. This article is in two parts. This first gives a brief explanation of the institutional and legal context in Wales concerning the making of legislation applicable to Wales and its publication. The second part discusses the access to legislation issues that arise from law making activity within that context.
Part 1 - The institutional and legal context
Law making by Welsh institutions
6. The National Assembly for Wales was established by the Government of Wales Act 1998 (“the 1998 Act”) . A limited form of law making by the National Assembly began in 1999 following the transfer (by an Order in Council made under that Act5) of functions to make subordinate legislation6 conferred by Act of Parliament on Ministers of the Crown. These legislative powers were not insignificant, but compared to the devolution settlements for Northern Ireland and Scotland, and the powers of sub-sovereign state legislatures in other comparable societies with a common law heritage (like the Canadian provinces and Australian states and territories), they were very modest in scope.
7. The Government of Wales Act 2006 (“the 2006 Act”) provided a new law making dispensation for implementation in two phases. In the first phase, the subordinate legislative powers transferred to the National Assembly under the 1998 Act were transferred to a new executive established by the 2006 Act (the Welsh Government7, composed of the Welsh Ministers (including the First Minister), Deputy Welsh Ministers and the Counsel General to the Welsh Government). Part 3 of the Act, which operated between 2007 and 2011, provided a mechanism by which the National Assembly could make any provision that could be made in an Act of Parliament by enacting laws called Assembly Measures. But the ability of the National Assembly to pass such Measures was subject to legislative competence being conferred in an amendment to the 2006 Act by Order in Council approved by the United Kingdom Parliament or in an Act of the UK Parliament. Assembly Measures were also subject to further limitations set out in the 2006 Act.
8. The second phase began following a ‘Yes’ vote in a referendum held in Wales on 3rd March 2011 with the coming into force of Part 4 of the 2006 Act. Part 4 empowers the National Assembly to pass laws by Act of the Assembly in relation to subjects specified in Schedule 7 to the 2006 Act. The subjects of Assembly legislative competence relate to agriculture, fisheries and forestry and rural development; ancient monuments and historic buildings; culture; economic development; education and training; environment; fire and rescue services and fire safety; food; health and health services; highways and transport; housing; local government; the National Assembly for Wales8; public administration; social welfare; sport and recreation; tourism; town and country planning; water and flood defence; the Welsh language. These descriptions are not the operative descriptions of subjects about which the National Assembly can make law. They are the headings beneath which more detailed (i.e. narrower) operative descriptions actually spelling out the detailed competence are to be found. A number of the subjects have specified exceptions that are particularly relevant to the subjects under which they are listed, but all of the exceptions apply to all subjects9.
9. Measures and Acts of the National Assembly for Wales are always enacted in both English and Welsh and subordinate legislation made by the Welsh Government is usually made in both languages. Section 156 of the Government of Wales Act 2006 provides as follows:
“(1) The English and Welsh texts of—
(a) any Assembly Measure or Act of the Assembly which is in both English and Welsh when it is enacted, or
(b) any subordinate legislation which is in both English and Welsh when it is made,
are to be treated for all purposes as being of equal standing.”
10. The full implications of this for the court system and legal practice have yet to be realised, as much of the primary legislation within the devolved domain is still to be found in Westminster Acts in English only.
Law making for Wales by the UK Parliament and the UK Government
11. The Welsh devolution settlement leaves much in the hands of UK Parliament and the UK Government. The settlement does not include general civil and criminal law. Neither does it include the administration of justice, policing, public order, prisons, employment law, company law, health and safety law, and social security. Also there are often complex exceptions to the subjects devolved - aspects of the law that broadly fall within the subject headings, but which are reserved to the UK Parliament. By way of example, the National Assembly may make laws about animal welfare, but not hunting with dogs. Similarly the National Assembly’s legislative competence includes recreational activities, but not betting, gaming and lotteries.
12. Legislation for Wales in these areas continues to be made by the UK Parliament and executive policy responsibility for them rests with UK Government departments. The UK Parliament may also continue to make laws falling within the legislative competence of the National Assembly for Wales, subject to the convention that it would not usually do so without the consent of the National Assembly.
13. As the stock of bi-lingual law made by Welsh institutions grows, there will be an increasing need for UK institutions to grapple with Welsh language text on those occasions where there is a need to change the law in the Welsh legislative domain. To be sure of making an effective amendment to bi-lingual legislation in a way that respects the status of the Welsh language text, both texts should be amended10.
'Welsh Legislation' and other legislation applicable to Wales
14. Domestic legislation applicable in relation to Wales is, therefore, comprised of both a domain administered and subject to change by the institutions of devolved government and a domain administered and subject to change by the United Kingdom Parliament, the UK Government and its agencies11. There are also minor incursions from each of these domains into the other. UK Ministers of the Crown have functions exercisable in relation to Wales that are within the power of the National Assembly to modify or remove by Act, albeit with the consent of the Secretary of State; for example, the powers of the Secretary of State to set the pay and conditions of teachers in schools maintained by local authorities12. And similarly there are situations where Welsh Ministers exercise executive functions conferred by an Act of the UK Parliament, even though the National Assembly (to which they are otherwise accountable) does not have the power to do the same thing in an Act of the Assembly; for example, the Welsh Ministers now exercise functions in respect of building regulation13, but not every aspect of that part of the law is within the legislative competence of the National Assembly.
15. A significant fact for everyone concerned with the accessibility of laws applicable to Wales is that the majority of domestic laws (whether statute or common law) that affect people’s day to day lives, and most issues arising in legal practice, lie outside the devolved domain – even in the post ‘Yes’ vote Wales. The Welsh devolution settlement is not equivalent in scope to the Scottish or Northern Ireland settlements. Even if the National Assembly were to re-enact or codify all of the existing law that it could within its current legislative competence, we estimate it would amount to no more than about a third of the total stock of domestic statute law applicable to Wales14. And yet this is still a large body of vitally important law of immediate concern to people in Wales; covering such things as the National Health Service in Wales, the education system, social care, housing, protection of the environment and the Welsh language.
16. This article is principally concerned with how we make Welsh legislation more accessible, and for this purpose ‘Welsh legislation’ includes the following categories of legislation within the legislative domain of Welsh law making institutions15:
- Acts and Measures of the National Assembly;
- Acts of the United Kingdom Parliament, in relation to the provisions of such legislation that may be enacted in an Act of the National Assembly or made in subordinate legislation by the Welsh Government;
- UK statutory instruments in relation to the provisions of such legislation that may be enacted in an Act of the National Assembly or made in subordinate legislation by the Welsh Government;
- Welsh statutory instruments16;
- other subordinate legislation made by the Welsh Ministers, the First Minister or Counsel General.
17. A further category not within the power of the Welsh devolved institutions to change, but vital to ensuring effective access to legislation that is within their domain, is the stock of legislation dealing with the constitutional law of devolved governance, including the Government of Wales Acts and the subordinate legislation made under them. We would also include this category as ‘Welsh legislation’ for the purposes of action on accessibility.
18. But we also need to bear in mind that in telling the story of how Welsh legislation works there is a need to make connections to the legislation applicable to Wales that lies outside the devolved domain. This applies to the way the story is told in legislation and the way it is told in explanatory narratives for different audiences.
The court system of England and Wales
19. Post devolution Wales remains part of the unified court system for England and Wales. Devolution has had a significant impact on the administration of justice for Wales, but largely through changed administrative arrangements. There is an Administrative Court for Wales. Wales has a Chancery Judge, a Mercantile Judge and there are judges who sit in the Technology and Construction Court in Wales. There are also differences in the tribunal system which arise directly from separate statutory provision for Wales, with separate Welsh tribunals for matters such as mental health, special educational needs and disability discrimination cases in schools and the Welsh language17. Despite these differences, all legislation applicable to Wales forms part of the law recognised by the courts and tribunals of England and Wales. A claim that can be made in a county court in Wales where the effect of legislation made by the Assembly is an issue can also be made before a court in England and justice dispensed accordingly.
20. Measures and Acts of the Assembly apply in relation to Wales in the terms expressed in those enactments, but extend to England and Wales. The distinction between the legal concepts of application and extent is the technical means by which the devolution of legislative power to Wales can be reconciled with the unified jurisdiction in statute law– and it is a source of confusion. Section 2(4) of the Special Educational Needs (Information) Act 2008 (an Act of the UK Parliament) states that, “This Act extends to England and Wales”. But other provisions which make the substantive changes to the law make clear that they apply only in relation England and not to Wales. Fortunately, we are able to avoid baffling the uninitiated in this way in Measures and Acts of the Assembly by not including extent provisions. They are not included on the basis that extent provisions in Assembly Measures and Acts would be superfluous, because the provisions of an Assembly Measure or Act may only form part of the law recognised by the court system of England and Wales (in other words, it may only extend to England and Wales)18. An Act or Measure of the National Assembly deals with application in relation to Wales by express provision, the precise terms of which depend on the nature of the subject matter of the legislation. Provision about the powers and duties of a “local authority” might include a definition of a “local authority” as “the council for a county or county borough in Wales”. The application of provisions in the draft Public Audit (Wales) Bill, currently out to consultation, is made clear by reference to the bodies subject to audit by the Auditor General for Wales (the Welsh Ministers, local authorities for areas in Wales etc) and the arrangements for the appointment and accountability of the Auditor (i.e. subject to Welsh devolved institutions). The draft Food Hygiene Rating Scheme (Wales) Bill, which has been subject to consultation and is shortly to be introduced, limits the application of its provisions by reference to the areas of food authorities “in Wales”: “A food authority in Wales must inspect food business establishments in its area in order to assess the food hygiene standards of the establishment.” An indication as to application is also provided in the short titles of Assembly Measures and Bills.
Publication of legislation made in, or relating to, Wales
21. Responsibility for the official publication of Welsh legislation (other than subordinate legislation not made by statutory instrument) rests with the Queen’s Printer of Acts of Parliament, an office now housed with other offices and departments with public information and records functions within an umbrella UK organisation: the National Archives19. There is no provision under the Government of Wales Acts for a Queen’s Printer for Wales20, or any specific provision about the printing of Assembly Measures and Acts in the same manner as for Scotland. The official prints of Assembly Measures and Acts are produced under administrative arrangements by the Controller of Her Majesty’s Stationery Office (who is also appointed by Letters Patent as the Queen’s Printer of Acts of Parliament, holds the Office of Queen’s Printer for Scotland and is appointed as the Government Printer and the office appointed to print Acts of the Northern Ireland Assembly). The publication of Welsh statutory instruments is a responsibility of the Queen’s Printer of Acts of Parliament under the Statutory Instruments Act 1946, as adjusted following devolution.
Law reform and consolidation
22. The Law Commission for England and Wales is the only body formally charged with looking at reform of the law applicable to Wales, but this is done through the prism of the unified legal system of England and Wales. The specifically Welsh dimension to the current state of the Law of England and Wales arising from the devolution of legislative power is not addressed, or even acknowledged, in the Law Commissions Act 1965, which established the Commission and its counterpart for Scotland.
23. The Law Commission’s functions are set out in section 3 of the 1965 Act, which currently provides as follows:
3. Functions of the Commissions.
(1) It shall be the duty of each of the Commissions to take and keep under review all the law with which they are respectively concerned with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law, and for that purpose—
(a) to receive and consider any proposals for the reform of the law which may be made or referred to them;
(b) to prepare and submit to the Minister from time to time programmes for the examination of different branches of the law with a view to reform, including recommendations as to the agency (whether the Commission or another body) by which any such examination should be carried out;
(c) to undertake, pursuant to any such recommendations approved by the Minister, the examination of particular branches of the law and the formulation, by means of draft Bills or otherwise, of proposals for reform therein;
(d) to prepare from time to time at the request of the Minister comprehensive programmes
of consolidation and statute law revision, and to undertake the preparation of draft Bills pursuant to any such programme approved by the Minister;
(e) to provide advice and information to government departments and other authorities or
bodies concerned at the instance of the Government [ of the United Kingdom or the Scottish Administration ] with proposals for the reform or amendment of any branch of the law;
(f) to obtain such information as to the legal systems of other countries as appears to the Commissioners likely to facilitate the performance of any of their functions.
(2) The Minister shall lay before Parliament any programmes prepared by the Commission and approved by him and any proposals for reform formulated by the Commission pursuant to such programmes.
(3) Each of the Commissions shall make an annual report to the Minister on their proceedings, and the Minister shall lay the report before Parliament with such comments (if any) as he thinks fit.
[(3A) Subsections (2) and (3) of this section shall have effect in relation to the Scottish Law Commission with the substitution of “the Scottish Parliament” for “Parliament”.]
(4) In the exercise of their functions under this Act the Commissions shall act in consultation with each other [and the Northern Ireland Law Commission] .”
24. “The Minister” referred to in this section is the Lord Chancellor21
25. Despite its statutory remit, the work of the Law Commission has addressed the specifically Welsh dimension to law making within the jurisdiction. The National Health Services (Wales) Act 2006 consolidated the law on the NHS in Wales in an Act of the UK Parliament. This followed set of Law Commission recommendations. And in its recent report on Adult Social Care, which recommends comprehensive reform to the statute law on that topic, the Law Commission came to the following conclusion:
“In our view, it would be constitutionally infelicitous to propose that the UK Parliament legislate for Welsh adult social care, whether in one UK bill covering both England and Wales, or in separate Westminster bills for each country. Given that Part 4 [of the Government of Wales Act 2006] has now been brought into force, we recommend that our proposals be implemented in Wales by means of an Act of the National Assembly. This would allow for the legislation itself to be made in Wales and would give the Welsh Assembly the freedom to implement our recommendations in the way they preferred. They would also be able to introduce further provisions into our recommended legislation – such as compulsory and emergency powers in adult protection – if they considered that desirable. Although the introduction of Part 4 does not affect the continued operation of Measures which were passed under the Part 3 regime – which would include the Social Care Charges (Wales) Measure 2010, for example – we would anticipate that in drafting a bill to introduce the recommendations set out in this report, the National Assembly would take the opportunity to repeal and re-enact those measures already passed that should be integrated into the instrument for our scheme.”22
Part 2 - The accessibility issues affecting Wales
Introduction - three aspects
26. There are three main aspects to the accessibility challenge in respect of Welsh legislation which require attention:
- the availability of up to date versions of legislation as it has been amended (both English and Welsh where legislation has been made bi-lingually);
- complexity arising from the law making and law review systems, practices and activity of the National Assembly, the Welsh Government, the UK Parliament, the UK Government and the Law Commission as it relates to the Welsh devolved domain;
- the availability of explanatory narratives of the law relating to Wales in topic areas that are partly or entirely within the Welsh devolved domain (whether for the benefit of lawyers or non-lawyers).
Access to up to date legislative text
27. There is no fully updated, cost free text available of the legislation applicable to Wales. And there is no fully updated, cost free text of the legislation applicable to England either. By “updated” we mean incorporating textual and non-textual modifications and indicating whether, and to what extent, provisions have been commenced. There are some Wales only problems for those wishing to know the law applicable to Wales and they deserve attention and action, but they are not currently as acute as the problems shared with people who want to find out, without cost, what the statute book looks like at any point in time for England and Wales or England alone. This situation is the consequence of what had been the long standing policy of the UK Government that the publication of updated versions of legislation would be left entirely to the private sector. There has been a relatively recent shift, however, with the production of the on-line database of legislation produced by the National Archives now to be found at www.legislation.gov.uk.
28. The legislative information platform provided by www.legislation.gov.uk is a state of the art technological solution to the presentation of the vast and unwieldy output of the UK’s law making bodies. It is an impressive system, for example in its ability to deal with textual and non-textual modifications23, and has huge potential for improving access to legislation. The mammoth task of bringing it up to date is underway and the team responsible for the system are engaged in developing innovative technologies and partnerships with third parties in the public and private sectors to reach the goal of fully up-to-date as amended legislative text for the whole UK. But achieving the goal will take time. Under current arrangements activity is focused on priority primary legislation and until now no attempt has been made to keep statutory instruments as amended up to date.
29. Legal professionals, or anyone else prepared to pay, are generally well served by the commercial publishers of legislation. On-line subscription services like Westlaw and Lexis-Nexis Butterworths Direct provide as amended up to date texts of both primary and secondary legislation applicable to England and Wales, England alone or Wales alone. They include as amended text of all primary legislation enacted by the National Assembly and the statutory instruments made by the Welsh Ministers and the pre-2007 Assembly. But they do not provide the Welsh language text of that legislation.
30. A person, with or without access to subscription services who wishes to access the updated legislative text in English of legislation within the Welsh devolved domain is not very much worse off than a person wishing to access the updated legislation applicable in relation to Wales outside that domain (or indeed the legislation applicable in relation to any other part of the UK). The additional accessibility difficulties in respect of access to Welsh legislation relate to issues around the general organisation of the legislation and its creation described in paragraphs 33 to 36 below. But by international standards (e.g. Canada, Australia, New Zealand24) anyone wishing to access amended up to date text from anywhere in the UK is not particularly well off, as it is not currently possible to access the up to date text in the way that is possible through the commercially available subscription services.
31. A person wishing to access the updated Welsh language text of the law made in Welsh is in the worst position of all, because this text is not available at all in any public or commercially provided service. This means for all practical day to day lawyering purposes the Welsh text is very difficult to use. The Welsh language text of legislation is really only an easily useable resource during the period when it is subject to consultation and scrutiny before enactment, and for whatever period after enactment it survives unamended. Where we make law bi-lingually, the effect of section 156(1) of the Government of Wales Act 2006 is that the law is both texts, not one or the other. This means that in order to fully understand the legal position the reader needs to understand both texts (or, if not, seek advice from someone who can) - an ambiguity in one text may be removed by the other. The absence of fully updated Welsh language text in either the free publicly provided service or those provided by the private sector is clearly not good enough if we are serious about Welsh being an effective language of the law.
32. The solution for this aspect of the access to Welsh legislation problem is simple: more resource needs to be devoted to bringing it up to date in English and Welsh on the platform already created on www.legislation.gov.uk. There may also need to be some adjustments to the presentation of material, for example by allowing side by side presentation of Welsh and English versions of the consolidated texts and better indication of territorial application, but the core IT architecture is already in place. The National Archives and the Welsh Government are working together to embark upon the necessary work. The Counsel General to the Welsh Government, Theo Huckle QC, recently mentioned the commitment of additional resources to this task in an oral statement to the National Assembly on access to legislation issues25. With modest additional resource dedicated to Wales, the backlog of updating can be solved within 2 or 3 years and all new Welsh legislation can be routinely updated immediately in future.
Complexity arising from the devolution settlement itself and subsequent law making
33. Even if you have access to the text as amended through an on-line service you will be faced with some degree of complexity in the legislation presented which arises from the nature of the devolution settlement and subsequent law making activity.
34. It may help to illustrate this with an example currently on the statute book. Chapter 2 of Part 2 of the School Standards and Framework Act 1998 deals with the establishment, alteration or discontinuance of schools maintained by local authorities. Much of it now applies only to Wales as result of reform relating only to England in Westminster Acts. Subsections (1) to (3), as amended, of section 30 (Notice by governing body to discontinue foundation or voluntary school) of the School Standards and Framework Act 1998 provides:
“(1) Subject to the following provisions of this section, the governing body of a foundation or voluntary school may discontinue the school by serving on the Secretary of State and the local authority at least two years' notice of their intention to do so.
(2) If expenditure has been incurred on the school premises (otherwise than in connection with repairs)—
(a) by the Secretary of State,
(b) by the Funding Agency for Schools,
(c) by any local authority, or
(d) by an authority which was a local education authority within the meaning of any enactment repealed by the Education Act 1944 or an earlier Act,
no such notice may be served without the consent of the Secretary of State.
(3) If discontinuing the school would affect the facilities for full-time education suitable to the requirements of persons over compulsory school age who have not attained the age of 19, the governing body shall, before serving a notice under this section, consult—
(a) if the school is in England—
(i) the Young People's Learning Agency for England, if it has secured the provision of education for any such persons at the school, and
(ii) each local authority which has secured the provision of education for any such persons at the school;
(b) if the school is in Wales, the Welsh Ministers.”
It is clear from the text of the section that the requirement to consult prescribed by subsection (3), is to apply to Wales in a way that is different to England, as the governing body of a foundation or voluntary school in Wales must consult the Welsh Ministers and not the Young People's Learning Agency for England and a local authority26. Those with some degree of understanding of the legal niceties of Welsh devolution and who can access a fully updated and annotated version of this section (i.e. those who pay for the service) would, however, be aware that the position is more complex. Annotations provided by the main commercial publishers of up to date legislative text would tell the reader that the references in subsections (1) and (2) to the “Secretary of State” have, in relation to Wales, been transferred to the National Assembly27. What those annotations will not tell you is that by virtue of paragraph 30 of Schedule 11 to GOWA 2006 those functions now vest in the Welsh Ministers. For Wales, therefore, the references to the Secretary of State meant the Secretary of State when the provisions were first enacted, they meant the National Assembly between 1999 and 2007 and since 2007 they have meant the Welsh Ministers. So for Wales there are references to the Secretary of State in subsections (1) and (2) which actually mean the Welsh Ministers, as well as the actual textual reference to the Welsh Ministers a subsection later. To add to this confusion, if the reader continues to section 31 of the Act (or indeed goes back to section 29), he or she will see a reference to the need, for example, to consult “the Assembly”. The general interpretation section (162) of the Act (as it has been amended) will tell the reader that “the Assembly” means the “National Assembly for Wales”. But it won’t tell you that in law (again by virtue of paragraph 30 of Schedule 11 to GOWA 2006) this actually means “the Welsh Ministers”.
35. The solution to all of this obscurity is to replace the much amended and glossed Westminster statute, which for the most part now only applies to Wales, with a modern re-statement of the law on school organisation in an Assembly Act. This is one of the purposes of the School Standards and Organisation (Wales) Bill currently before the Assembly.
36. The kinds of difficulties illustrated above have a number of causes—
(a) to a limited but significant extent it is a necessary consequence of having a unified legal system in England and Wales and a relatively narrow range of legislative competence for the Assembly (as compared to Scotland and Northern Ireland);
(b) in part it is a reflection of the legislative inheritance of the pre-devolution and post-devolution system - the vast stock of England and Wales and UK legislation that continues in effect in Wales and can only be decoupled with concerted effort over a long period of time;
(c) in part it is affected by the policy, handling and drafting decisions made in recent years and from now on about how law for Wales will be made (for example, if provision is made in a Westminster Bill rather than in an Assembly Act, or in an Assembly Act amending one or more England and Wales or UK Acts, or if there is no rolling programme of revision and consolidation Bills the law in Wales will be more difficult to access than would otherwise be the case);
(d) in part it is affected by the large number of Westminster Bills applying to England only which leave the old UK or England and Wales text in place for Wales only;
(e) in part it is affected by the early mechanisms for transferring powers to the Welsh Ministers by glossing provisions in transfer orders and Acts - although this is a problem that is diminishing over time as new legislation confers functions expressly on devolved Welsh institutions.
37. A solution commonly put forward to resolve these issues is the creation of a “Welsh statute book” 28. This is a superficially attractive notion, but it is not an entirely apt description of what is needed under the current settlement, given the scope of the Welsh legislative domain and the unified court system. Even within the devolved legislative domain, the statute law that applies only to Wales is interwoven to a greater or lesser extent into the legislative fabric of the unified jurisdiction of England and Wales and it remains the case that the vast majority of statutes in force and most of the new law made by the United Kingdom Parliament applies to the whole jurisdiction. It is therefore, in our view, an unhelpful label to put on what is required as things currently stand, because the use of the label seems liable to conflate three separate issues, which although connected, deserve separate attention:
- the first being the extent to which the laws within the devolved domain are accessible;
- the second being whether further legislative powers should be devolved to Wales;
- the third being whether Wales should have a separate court system.
38. The relationship between the scope of the devolution settlement and the extent to which laws applicable to Wales can be made more accessible, or at least the way in which they can be made accessible can be seen by looking at the example of the law on children. Family law and proceedings are an exception to the social welfare subjects. This means that it is not possible for the National Assembly to pass a consolidation or reform Act having the same scope as the Children Act 1989 (“the 1989 Act”), which was the last comprehensive treatment of the topic in a single statute for England and Wales. The 1989 Act has been substantially amended by numerous Acts of Parliament and an Assembly Measure29. Significant areas of the 1989 Act as originally enacted lie outside the Assembly’s legislative competence including much of Part 1 of the Act (introductory provisions including the welfare principle to be applied by courts), Part 2 (orders with respect to children in family proceedings) and Part 4 (care and supervision orders). But significant provisions of the 1989 Act as originally enacted are within the competence of the Assembly; such as Part 3 (local authority support for children and families), Part 6 (community homes for children) Part 7 (voluntary homes and voluntary organisations) Part 8 (registered children’s homes), Part 9 (private arrangements for fostering children) and Part 10 (child minding and day care for young children). Part 5 (Protection of children) contains a mixture of provisions that are within competence and provisions that are not.
39. It will be immediately apparent that as policy diverges between England and Wales in respect of devolved matters relating to children, the legislative story must be told in a different way from the past. Unless the settlement changes, substantial portions of the law on children will have to remain in Westminster Acts. Ordinarily the best course for provision in Assembly Acts from the point of view of the reader is free standing provision in the Act, rather than amendment of existing legislation. This puts the story in one document and it also means that the law will be in both English and Welsh. Making significant changes, to the policy underlying some provisions might give rise to questions as to whether it is better in that case to proceed by way of amendment to the Westminster Act rather than free standing provision in the Assembly Act; for example, section 47 of the Children Act 1989 concerns local authority duties to investigate which are within the National Assembly’s competence, but they relate closely to the rest of the story of Part 5 of that Act on child assessment orders and emergency protection orders which is not within its legislative competence. If the particular provisions are very closely connected to the provisions of that Part which are not devolved the interests of the reader may be better served by having the complete story located in an amended Westminster Act.
40. The key point here is that there going to be occasions when the nature of the settlement dictates the shape of the law and not the nature of the topic. And the result may not be as easy to access or understand as the result that could be achieved if the National Assembly had more wide ranging legislative power. This is not to say that the need to facilitate the perfect legislative result, from the standpoint of someone wishing to make the law easy to understand, should be the overriding consideration when deciding the intensely political question of what powers are appropriate for the National Assembly.
41. Neither the devolution of further legislative power nor the creation of a separate court system for Wales is a necessary condition for making laws made in Wales more accessible . But the current settlement and the unified jurisdiction does affect the extent to which, and the way in which, the story of a particular subject, like the law relating to children, can be told in statutes enacted by the National Assembly. Arrangements are needed to better demarcate Wales-only legislation and improve the extent to which law in the Welsh legislative domain can be understood within the England and Wales statute book. And those arrangements will be just as relevant to further additions to the devolved domain, given that the existing stock of legislation in such areas will not suddenly become easier to find or more readily understandable immediately after the commencement of any future possible extension of the National Assembly’s legislative competence.
42. So what should those arrangements be? Whatever they are, they need to allow for review and reform of the legislation within the Welsh legislative domain with a focus on its quality as accessible law –as opposed to whether it meets the policy priorities of the Welsh Government of the day.
43. There is an element of consolidation in the current 5 year legislative programme of the Welsh Government. There will be a Bill to reform social services and social care regulation, which involves an ambitious attempt to recast much of the existing primary legislation on this topic. There are also proposals for Planning Bill, which will involve consolidation of the existing primary legislation. The Welsh Government is also placing more emphasis on accessibility as an issue when considering how Bills are put together on any topic. Where there is an opportunity in any Bill to bring together the legislation on a particular topic in a way that makes the law overall clearer, we will endeavour to take it instead of building on the existing structure with additional layers of amendment to monolingual England and Wales legislation. However, the priority in programme bills, and quite rightly, is the policy reform agenda of the government.
44. In addition to the programme Bills, there may also be a need for a dedicated programme of consolidation in order to achieve a cohesive body of Welsh legislation. The aim should be to clarify Welsh legislation and separate it from that applicable to England, unless there are good reasons why not (see discussion of Children Act 1989 above). An early task of such a programme could be to consolidate the law of education applicable to Wales where there are at present Welsh provisions contained in 21 Acts of Parliament and 4 Assembly Measures.
45. But bringing forward a consolidation programme is easier said than done. Such an initiative would be time-consuming, resource intensive and may involve reform of existing statutory arrangements. In times of competing priorities and limited funds the Welsh Government would need to be clear about the benefits. It would need to be sure that if it did it, it would do it well and do it efficiently. Should there be a Welsh Law Commission or reform of the current remit of the Law Commission for England and Wales? Is there anything we can learn from the different approaches to this in Canada, Australia and New Zealand? The Counsel General to the Welsh Government is currently considering the institutional and procedural arrangements that would necessary to facilitate review and consolidation of Welsh legislation taking into account the experience of this in England and Wales and in other Commonwealth jurisdictions.
The availability of explanatory narratives of the law relating to Wales
46. The commercially available commentaries on the law of England and Wales largely focus on the position in England, if indeed they deal with Wales at all. Where Wales is dealt with, it is often by reference back to the position for England. More commentary is needed with the focus on Wales both to better explain current development to lay and professional audiences and to facilitate debate about those developments. The Wales issue of the Statute Law Review in which this article appears is a most welcome development.
47. The Counsel General to the Welsh Government has also recently signalled his desire to improve accessibility by developing narrative explanation and analysis of Welsh legislation to create an encyclopaedia of Welsh law or “WALIA” – Wales Legal Information Access – that would be available to all.
48. Making law easily accessible is difficult. As is convincing those with influence and power (mainly non-lawyers inside and outside government) that scarce public resources should be spent on this activity when there are so many other pressing concerns. This may well be a common experience among many if not all jurisdictions, particularly in the current economic and financial climate.
49. There are limitations, both constitutional and practical, but much could be done. Access to Welsh legislation could be improved significantly through an approach to legislation which incorporates more Wales only text in Wales-only Acts in order to move gradually towards free-standing Welsh legislation. This would involve revising, codifying and consolidating the law where it has become complicated and obscure after years of amendment and glossing.
Laws could, to the extent practicable, be drafted afresh – bilingually - as opposed to amending existing provisions. And in carrying out this work everyone involved in the Welsh law making enterprise would be well advised to keep in mind the words of Professor Fuller, and the ‘morality of law’.
1 Both members of the Office of the Legislative Counsel, Welsh Government. The views expressed are personal and not necessarily those of the Welsh Government.
2 Revised Edition 1969, Yale University Press.
3 Fuller, The Morality of Law, p.39.
4 Allen Lane (2010), p. 37 to 47.
5 The National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672). Further transfer orders were made under the 1998 Act and where subsequent Acts of the UK Parliament conferred subordinate legislative powers in devolved topics, they were conferred on the Assembly by those Acts. This was sometimes done by methods that did not always lead to the clearest possible exposition of the law relating to Wales: such as deeming references to the Secretary of State to include the Assembly (although the deployment of these methods was probably the best that could be done under the real world time pressures and other practical burdens of Bill drafting).
6 Before devolution a Minister of the UK Government, the Secretary of State for Wales exercised the law making functions of providing Welsh input to UK Bills, (very rarely) sponsoring Wales-only Westminster Bills on matters such as local government and the Welsh language, and making subordinate legislation under powers that were transferred within government on a piecemeal basis (and which eventually transferred to the National Assembly). But this activity took place within the limits of a government elected on a mandate from the UK electorate as a whole and not just from Wales, the collective cabinet responsibility of the UK Government and heavy reliance on a policy expertise lead from UK departments of state responsible for specific subjects such as agriculture, social services, health or local government.
7 Called “the Welsh Assembly Government” in the 2006 Act, but now restyled “the Welsh Government” to avoid confusion in public discourse beween the executive and legislative branches of devolved power in Wales.
8 That is, certain matters internal to the workings of the National Assembly such as complaints about Assembly members.
9 Section 108(4), Government of Wales Act 2006.
10 For an example of this being done in UK legislation see The Treaty of Lisbon (Changes in Terminology) Order 2011 (SI 2011/1043)
11 Of course there is also directly applicable legislation of the European Union, but discussion of this additional layer of legislative complexity and how it affects accessibility is outside the limits of what can be sensibly covered in this article.
12 Section 122, Education Act 2002.
13 See the Welsh Ministers (Transfer of Functions) (No 2) Order 2009 (SI 2009/3019)
14 This is based on guesswork and an entirely unscientific survey of the topics and volumes of Halsbury’s Statutes of England and Wales.
15 The accessibility of legislation in the domain that falls outside the power of the Welsh devolved institutions is obviously not something those institutions can do anything about directly, at least for the foreseeable future.
16 Subordinate legislation in the form of orders, regulations, rules, schemes etc made by the Welsh Government and which are required by the enabling Acts to be made by statutory instrument (and are therefore subject to the publication requirements of the Statutory Instruments Act 1946).
17 For further details see The Machinery of Justice in a Changing Wales - Sir David Lloyd Jones, Law Society lecture at the National Eisteddfod of Wales, Blaenau Gwent and the Heads of the Valleys 2010.
18 See sections 94(6)(b) and 108(6)(b) of the Government of Wales Act 2006. There has been one exception to this practice. Other examples are conceivable, but are likely to be rare. Section 155 of the Welsh Language (Wales) Measure 2011 makes provision for repeals of the Welsh Language Act 1993 (a UK Act) to have the same extent as the provision repealed. The reason for this was doubt about whether the 1993 Act extended to the UK or just England and Wales. Specific authorisation was given for the Assembly to enact provision extending outside England and Wales for this narrow purpose in article 2(2) of the National Assembly for Wales (Legislative Competence) (Welsh Language) Order 2010 (SI 2010/245).
19 The reasons for the UK wide publication arrangements were explained, with particular reference to Wales, during the passage through Parliament of the Bill which became the Government of Wales Act 2006. In response to a proposed amendment which would have placed the responsibility for publishing Measures on the Welsh Government, Lord Davies of Oldham responded for Her Majesty’s Government made the following points:
“I say in response to the very pertinent question put by the noble Lord, Lord Crickhowell, that ultimate responsibility for the publication of legislation in the UK rests with the Queen's Printer, acting under Royal Letters Patent on behalf of the Crown. The Controller of Her Majesty's Stationery Office is designated as Queen's Printer of Acts of the UK Parliament, Queen's Printer for Scotland and Government Printer for Northern Ireland, and has responsibility for the arrangements under which all UK legislation is published. Resting that responsibility in one body ensures coherence in that all UK legislation is available to all in a consistent form and from a single location. This amendment would cut straight across that arrangement. Under the arrangement, the Queen's Printer will continue to have responsibility for the publication of statutory instruments made by the Welsh Ministers, as existing statutory arrangements relating to the publication of subordinate legislation made as statutory instruments will continue. The Crown will have a general obligation to ensure publication of Assembly measures and Acts, and it is intended that administrative arrangements will be made with the Queen's Printer regarding their numbering, printing and publication. It is expected that the Queen's Printer will adopt a similar approach to the publication of measures and Acts of the Assembly as currently occurs for all other UK legislation; namely, publication in print and on the internet via the official legislation website, followed by production of a printed annual volume. The Queen's Printer will also ensure that users such as commercial legal publishers are able to access the legislation in appropriate formats.”
20 Contrast the position in Scotland where section 92 of the Scotland Act 1998 which provides that the Queen’s Printer for Scotland is responsible for the printing of Acts of the Scottish Parliament and Scottish Statutory Instruments.
21 Section 6(2) Law Commissions Act 1965.
22 Paragraph 3.9.
23 “United Kingdom (http://www.legislation.gov.uk) — This is probably the most extensive and expensive legislation system in the world. It is based on SGML, the “parent” of XML. It is a very impressive system. One of the many things I find interesting about it is the way that it deals with non-textual amendments — the clearest way that I have seen in any system. For an example, see the annotation “Modifications etc. (not altering text)” at the end of s. 8 of the Highways Act 1980" Ed Hicks in Implementing Legislation Systems – Considerations and Options (The Loophole, January 2012).
24 For an excellent comparative study see Keeping the statute book up to date: a personal view, Dr Duncan Berry in Legislative Drafting Edited by Aldo Zammit Borda, Routledge 2011.
26 Or if amendments made to this section for England by the Education Act 2011 are brought into force, to the Secretary of State and a local authority.
27 The reader would be informed that “Functions of the Secretary of State, so far as exercisable in relation to Wales, transferred to the National Assembly for Wales, by the National Assembly for Wales (Transfer of Functions) Order 1999, SI 1999/672, art 2, Sch 1”.
28 See the statement of Simon Thomas AM in a short debate in plenary at the National Assembly for Wales - “A New Book of Blegywryd? Restoring Legal Authority to Wales”
29 See Part 2 of the Children and Families (Wales) Measure 2010 which deals with the regulation of child minding and daycare for children.