A draft Bill published by the Welsh Government could make radical changes to the way that law is drafted in Wales, addressing concerns about the accessibility of the law in Wales, write Tiffany Cloynes and Clare Hardy.
The Welsh Government believes it is important to make laws more accessible, for reasons of social justice, democracy and efficacy. It is concerned about the complexity which has resulted from the vast amount of primary and secondary legislation and its amendment over time. In Wales, whilst there is an increasing amount of law made by the Welsh Ministers, some of this involves amending legislation which, when made, applied to England and Wales. Although law is available online, the complexity of the development of law in Wales means that people can find it difficult to navigate the information and understand the current position.
In order to address this situation, the Welsh Government has published a draft Bill, the Legislation (Wales) Bill, together with a consultation document. Consultation on the draft Bill lasts until 12 June.
The Welsh Government is proposing to codify Welsh legislation. This would take forward the recommendation of the Law Commission in its report Form and Accessibility of the Law in Wales, which was published in 2016 and would make Wales the first part of the United Kingdom to have codified law. Codification would involve organising and publishing law by reference to its content, rather than just when it was made. A code would be a collection of legislation under one unifying overarching title. The legislation which makes up a code would be made in English and Welsh and would be available together.
In recognition of the fact that the process of making the law more accessible could take a long time, the Legislation (Wales) Bill will require the Welsh Ministers and Counsel General in each term of the National Assembly for Wales to implement a programme of activity which is designed to improve the accessibility of Welsh law. These programmes will be expected to include steps to facilitate use of the Welsh language in the law and in public administration more generally and to promote Welsh law. Consultation will be required on each programme, to ensure that it focuses on areas of law which are most in need of consolidation and which have most impact on users of legislation.
There will also be a requirement for the Counsel General to keep Welsh law under review. The Welsh Government expects that when the Welsh Ministers are considering new legislation, the Counsel General will have regard to what impact the approach to introducing the new legislation could have on the accessibility of the law.
The Welsh Government’s consultation identities the need to make provision for interpretation in Welsh law. The Interpretation Act 1978 which governs the interpretation of legislation in England and Wales, was made by the UK Parliament before devolution of legislative competence to the Welsh Ministers. Some of its provisions are not relevant to law which applies in Wales only. Significantly, there is no Welsh language text of the Act and some people have commented that the lack of bilingual provision on interpreting legislation means that Welsh is being treated less favourably than English, contrary to the requirement of section 156 of the Government of Wales Act 2006 that both languages should be treated as of equal standing.
The draft Bill proposes that the Interpretation Act 1978 will continue to apply to Acts, Measures and subordinate legislation made by the National Assembly for Wales before the interpretation provisions of the Legislation (Wales) Bill comes into force. It would also apply to subordinate legislation made under an Act of the UK Parliament after those interpretation provisions come into force and made by someone other than the Welsh Ministers or by the Welsh Ministers exercising powers jointly with others. Later legislation made by the Welsh Ministers will be subject to interpretation provisions in the Legislation (Wales) Bill.
The Welsh Government is also seeking views on the following issues which it considers may need to be dealt with in the Bill or in future legislation:
- Restating some provisions of the Government of Wales Act 2006.
- Arrangements for publishing Welsh law.
- Relationship between the Welsh language and English language text of legislation.
- Use of Welsh translation of enactments and bodies which do not have Welsh language titles or names.
In the longer term, the draft Bill published by the Welsh Government indicates that exciting times are ahead for the development of Welsh law.
This article was originally published in Local Government Lawyer