18 December 2018
The Legislation (Wales) Bill (“the Bill”) was introduced in the Assembly on 3 December 2018. The Bill makes provision about the interpretation and operation of Welsh legislation and requires the Counsel General and the Welsh Ministers to take steps to improve the accessibility of Welsh law.
There are four parts to the Bill, including:
- Part 1 which imposes duties on the Counsel General to the Welsh Government and the Welsh Ministers relating to the accessibility of Welsh law; and
- Part 2 which makes general provision about the interpretation and operation of the Bill itself and of Welsh legislation enacted after Part 2 comes into force.
The background to the Bill has involved a number of inquiries and consultations including the Assembly’s Constitutional and Legislative Affairs Committee’s report on Making Laws in Wales (October 2015). It made a number of recommendations relating to the quality, preparation and scrutiny of legislation. In particular, it recommended that the Welsh Government develop a long-term plan for consolidating the law in Wales, and that the Counsel General work towards producing a Welsh interpretation Act that would be separate from the UK Parliament’s Interpretation Act 1978 (“the 1978 Act”).
In 2016 the Law Commission published its report, The Form and Accessibility of the Law Applicable in Wales. It recommended that the Welsh Government should pursue a policy of consolidating and codifying the law in Wales. It made a number of recommendations relating to the process of consolidation and codification, including that the Counsel General should be required to present a codification programme and report on progress to the Assembly.
The Law Commission also recommended that the Welsh Government and the Assembly consider, and keep under review, the practical benefits of introducing an Interpretation Act for Wales, and made further recommendations relating to the quality, publication and availability of legislation.
The Welsh Government subsequently published a consultation document, Interpreting Welsh Legislation: Considering an interpretation Act for Wales, in June 2017. It sought views on the benefits of having a separate Welsh Interpretation Act and on the approach that such an Act should take. This was followed by a second consultation on the Draft Legislation (Wales) Bill which sought views on the approach taken in the draft. The responses to both consultations were considered in developing the Bill for introduction.
What does the Bill aim to do?
Accessibility of Welsh law
Section 1 of the Bill creates a duty to keep the accessibility of Welsh law under review. The duty is placed on the Counsel General. It is similar to, and intended to supplement the obligation, in the Law Commissions Act 1965, on the Law Commission to keep the law under review.
The Bill provides a definition of “Welsh Law”:
- Assembly Acts and Measures and subordinate legislation made under them;
- other subordinate legislation made by the Welsh Ministers or the Assembly when it had executive powers only, so far as it applies in relation to Wales; and
- other legislation or common law rules which could potentially be reformed or re-enacted by the
Section 2 requires the Welsh Ministers and the Counsel General to develop a programme of action designed to improve the accessibility of Welsh law for each Assembly term. Each programme should make provision for measures that are intended to consolidate and codify Welsh law, maintain codified law and to facilitate use of the Welsh language.
The Explanatory Notes to the Bill provide definitions of consolidation and codification. They state that consolidating the law generally involves bringing all legislation on a particular topic together, better incorporating amendments made to legislation after it has been enacted and modernising the language, drafting style and structure. It concluded:
In Wales consolidation of the law will involve for the most part re-enacting laws previously made by the UK Parliament, and doing so bilingually.
Codifying the law is intended to bring order to the statute book. This involves “organising and publishing the law by reference to its content and maintaining a system under which that law retains its structure rather than proliferating.”
The Bill requires a programme to be laid before the Assembly within six months of the appointment of the First Minister following a general election. This is intended to ensure that each government can be held accountable for what its programme achieves over an Assembly term. It also requires the Counsel General to make periodic reports to the Assembly on progress against the programme.
In an Oral Statement the Counsel General described Part 1 of the Bill as “novel” in seeking “to put in place a system under which successive governments will be obliged to keep the accessibility of the law under review, and to take action to make it more accessible.” He went on to say that:
The long term goal is to create a well-organised Welsh statute book under which the law is categorised by Codes on specific subjects rather than simply by reference to when Acts and Statutory Instruments are made. The reason for taking the relatively unusual step of imposing a duty on the government itself is that the size and nature of the task is such that this must involve an enduring, long term, commitment. This means making consolidating the law and other related initiatives one of the priorities not only of this government but also of future governments.
The Counsel General also published a Draft Taxonomy for Codes of Welsh Law which is intended to illustrate the Welsh Government’s objective of having codes of law.
Interpretation and operation of Welsh legislation
Part 2 of the Bill makes provision about the interpretation and operation of legislation made by the Assembly or under powers it has conferred, and other subordinate legislation made by the Welsh Ministers and other devolved Welsh authorities.
The Interpretation Act 1978 currently governs the interpretation and operation of legislation. The 1978 Act will continue to apply to legislation that has been made before Part 2 comes into force. Part 2 will apply only to legislation made after that comes into force (and to the Bill itself).
In Plenary on 4 December 2018 the Counsel General explained that:
Part 2 of the Bill follows a long tradition established by the UK Parliament in the nineteenth century when it first passed an interpretation Act. Statutory interpretation is the process of determining the meaning and effect of legislation and how it operates.
How is the Assembly scrutinising the Bill?
The Bill has been referred by the Business Committee to the Constitutional and Legislative Affairs Committee for Stage One scrutiny. The Counsel General, who is the member in charge of the Bill, appeared before the Committee on the 10 December 2018. The Committee has launched a consultation which will close on 21 January 2019. The Committee will also take oral evidence from witnesses.
Article by Alys Thomas, National Assembly for Wales Research Service