Estimated reading time: 4 Minutes
25 June 2019
Stage 2 proceedings of the Legislation (Wales) Bill (“the Bill”) took place in the Constitutional and Legislative Affairs Committee (“the Committee”) on 13 May. Stage 2 is the first chance for Assembly Members to make amendments to the Bill.
The Bill was introduced in the Assembly on 3 December 2018. It 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.
Key changes made at Stage 2
Section 2 of the Bill 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 must include activities that are intended to consolidate and codify Welsh law, maintain codified law and to facilitate use of the Welsh language.
The Bill was amended at Stage 2 to ensure that activities under the programme must also be for the purpose of promoting awareness and understanding of Welsh law. This amendment was based on the Committee’s ninth recommendation in its Stage 1 report that:
The Bill should be amended so that proposed activities that are intended to promote awareness and understanding of Welsh law should be included as a duty under section 2(3) rather than being discretionary under section 2(4).
The Committee also recommended that the Bill should be amended so that the Counsel General is required to report annually to the Assembly on progress made under the programme, instead of periodically as originally drafted. The Welsh Government brought forward an amendment to this effect which was subsequently accepted during Stage 2 proceedings.
The Counsel General wrote to the Committee in January to provide details on how the Bill may present an opportunity to make provision about the interpretation of bilingual legislation. In his letter, he said:
Section 156(1) of the Government of Wales Act 2006 (“the 2006 Act”) makes clear that the English language and Welsh language versions of legislation passed by the National Assembly for Wales or made by the Welsh Ministers are equal. (…)
… my thinking at present is that we should restate section 156(1) so that it can be found in our legislation on the interpretation of legislation, rather than in what is essentially our constitutional document.
The Committee found no reason to disagree with this approach, “particularly as the Counsel General has indicated that restatement of the 2006 Act provision would then facilitate the production of guidance for the courts and for other users of legislation”.
The Counsel General subsequently brought forward an amendment adding a new section to the Bill which replicates section 156 of the 2006 Act and provides that, where an Assembly Act or Welsh subordinate instrument is enacted in both Welsh and English, the two languages have equal status for all purposes. The revised Explanatory Memorandum to the Bill states:
This means that the full expression of the law is that contained in both texts, not merely one.
During Stage 2 proceedings the Counsel General made a commitment to review the effectiveness of the Bill mid-way through the first programme of action designed to improve the accessibility of Welsh law. As a result, the Explanatory Memorandum has been amended and new paragraphs added to cover post-implementation review. This review will include:
…details of the resourcing and financial implications of delivering the first programme aimed at improving the accessibility of Welsh law, and other costs arising from implementing the Act.
Suzy Davies AM has tabled an amendment ahead of the Stage 3 debate which seeks to place a duty on the Welsh Government to prepare a report of that review and to lay it before the Assembly before the end of 2023.
The Counsel General was also asked by the Committee to provide a clear explanation during the Stage 1 debate of what is meant by the accessibility of Welsh law. He replied that:
For Welsh law to be accessible, it needs to be clear and certain in its effect, as well as being easily available and navigable. This needs to be the case not only in respect of individual Acts or statutory instruments, but also, collectively, all of the law on a particular subject and the statute book as a whole.
The Counsel General also committed to publish a position statement on consolidation and codification after the Bill has been passed, which will provide more information on what is meant by “the accessibility of Welsh law”.
Ahead of Stage 3 proceedings, Dai Lloyd AM tabled an amendment to the Bill which aims to place a definition of what is meant by the “accessibility of Welsh law” on the face of the legislation.
In addition, Suzy Davies AM also tabled an amendment relating to definitions. It provides that codifying Welsh law would include “adopting a structure for Welsh law that improves its accessibility” and “organising and publishing consolidated Welsh law according to that structure”. During the Stage 1 debate she raised concerns that there is uncertainty around what is meant by codification. As highlighted in the Committee’s report, the Welsh Government’s approach to codification involves organising and publishing the law by reference and maintaining a system under which that law retains its structure rather than proliferating, but the Committee heard differing views from stakeholders about what it might involve.
The Secretary of State for Wales in a letter dated 5 December expressed concerns about whether the Bill is within the Assembly’s legislative competence and that that the creation of an additional Act on the interpretation of legislation could make the law less as opposed to more accessible. The Solicitor General for the UK Government reiterated these concerns in a letter to the Counsel General on 25 April.
Stage 3 of the Bill will take place today when the Assembly as a whole will have an opportunity to amend the Bill during a Plenary debate.
Article by Manon George, Senedd Research, National Assembly for Wales