The next item on the agenda is the statement by the Counsel General on the codes of Welsh law and I call on the Counsel General to make his statement—Mick Antoniw.

Thank you, Presiding Officer. As a young legislature with relatively new powers to legislate, we in the National Assembly for Wales have a unique opportunity to bring order to the laws that we have inherited and to take a different approach to making new laws. This approach would put the citizen—the ultimate users of legislation—first, by ensuring our laws are clear, accessible and well kept. As Aristotle said,

‘Law is order, and good law is good order.’

Our opportunity is to lead the way in the United Kingdom by starting on a path of consolidation and codification of our law. Codes of Welsh law could underpin our legal jurisdiction and more generally form part of the foundations of our nation. Concerns have been raised for many years about the complexity of the law in the United Kingdom and the disorganised state of our vast and sprawling statute book. The problems are particularly acute in relation to Wales as our laws do not generally reflect our political and constitutional position within the UK. Although the position is changing rapidly, there are relatively few laws that only apply to Wales. Rather, most still apply to Wales and to England or to Great Britain or to the UK as a whole.

Some of the complexity derives from the fact that there is no formal body of Welsh law. We cannot speak of Welsh law, only of the laws of England and Wales—known by most, as it has to be said, as English law. The absence of a Welsh legal jurisdiction is part of the reason why the legal landscape is a confusing mishmash, impenetrable to most. Making Welsh laws within that context, which is of course our role as legislators, is more difficult than it should be. Perhaps the Wales Bill’s biggest flaw is that it offers no solution to this problem, a problem that we in this legislature cannot address alone.

Much of the complexity, however, derives more simply from the proliferation of laws that has developed over the recent decades in the United Kingdom. The statute book is made up of nearly 5,000 Acts and more than 80,000 statutory instruments, many of which are decades or even centuries old. Taking as an example the law of education, there are nearly 30 Acts of Parliament and Measures and Acts of the Assembly, as well as several hundred statutory instruments that have effect in Wales on that subject alone. The law is therefore difficult for lawyers to navigate, let alone the lay citizen.

The Constitutional and Legislative Affairs Committee has called upon the Welsh Government to consolidate the law within devolved areas, as has the Lord Chief Justice. In June, the Law Commission published its report ‘Form and Accessibility of the Law Applicable in Wales’ following a two-year project initiated by the Welsh Government. This involved considerable consultation with Welsh civic society and beyond. The Law Commission has recommended that a sustained, long-term programme of consolidation of Welsh law be developed, concluding that this would deliver clear societal and economic benefits. In their view, a process of consolidation followed by a form of codification is necessary in order to ensure that our laws are accessible. This process would also lead to our laws becoming fully bilingual, which in turn would help to further develop the Welsh language as a language of the law. Fundamentally, also, this would in future make our work in developing new laws and in scrutinising them considerably more straightforward and efficient.

Codifying our laws is something that has never been done before in the UK and I can only speculate as to why this is the case, but I suspect it is because of the size and cost of the task, and perhaps because of a lack of political will due to other more high-profile options taking priority. So, making this a priority is perhaps more difficult than ever, given the reductions in budgets that we face. But it could be said that bringing order to the law would be more than worthwhile, given the social benefits it would bring to the people of Wales, whose access to justice is more constrained than ever before in the light of cuts to legal aid and the closure of courts. There would also be efficiency gains across all sectors, bringing financial benefits to the economy and more clarity to our highly complex system of government. These are also issues that should be of concern to us as a responsible and maturing legislature.

The status quo, I would say, is becoming increasingly untenable. I believe we have little choice but to embark on what will be a lengthy and difficult path to remedy what we have inherited, and to develop more orderly systems of law making and publishing in the future. But I have no illusions about the complexity and the size of the task, and the length of the path. I’m also very conscious that we live in uncertain times and are likely to face other exceptional constitutional challenges in the coming months and years.

The result of the referendum on the United Kingdom’s membership of the European Union occurred after the development of the Law Commission’s recommendations, and the influence of European law on our constitutional arrangements was not directly considered. The likely need over the coming years to restate or replace European law is, however, connected to the issue of consolidating the law. European law adds to the complexity of the statute book, and there is clearly an overlap between our aspiration to codify the law and what may become an unavoidable need to restate European law in the domestic context. However, it is not yet clear what will emerge from the UK’s impending exit from the European Union, nor is it clear, from a Welsh Government perspective, what resource implications it will bring for those officials involved in developing legislation. The same scarce resources that could be deployed to consolidate the law may be required for other purposes.

But these difficulties should not preclude us from at least starting on the path. In the words of the Chinese philosopher Lao Tzu, a journey of 1,000 miles begins with one small step. So, we may make swift progress on parts of the journey, but I know that we will need to tread cautiously and we will no doubt be slowed along the way. So, my proposal, therefore, is that we instigate a project of consolidation, codification and better publication of the law as a pilot, to be evaluated towards the next year, and I hope that the pilot will be the beginning of a long-term process that will lead to codes in most areas of law that affect the citizens of Wales. So, during this pilot we will start the crucial task of consolidating our vast swathes of existing law in the devolved areas. We will also evaluate the numerous and more detailed recommendations made by the Law Commission, such as the creation of a dedicated legislative code office and the development of a formal programme of consolidation and codification.

Before embarking on a novel process that would require significant resource over many years, I am also anxious to ensure that sufficient benefits would accrue. Although difficult to quantify, I believe it would be prudent to evaluate the benefit of consolidating and codifying laws and publishing them on Cyfraith Cymru, the Law Wales website, in a small number of areas before proceeding further. Similarly, we will need to evaluate the demands that consolidating the law will put on scarce resources, in particular in light of other tasks that are likely to take priority.

So, as part of this process, it is also vital to ensure that we, collectively, as an Assembly, are fully supportive of this initiative, both in principle and, more specifically, in consolidating the law in particular areas that contain provisions, for example, that might be considered politically controversial. To get to the end of our journey, we must work together. So, unless the political will exists to facilitate consolidation by adopting suitable procedures, the initiative will not succeed. I have written to the Llywydd and I hope to consult widely with colleagues and representatives of the Assembly in the hope that we can collaborate.

To conclude, I believe that we have a responsibility to deal with a problem that is not of our making, but we have also an opportunity to lead the way. Events will intervene, and progress may be at times slow, but I propose that we begin the process of consolidating Welsh law and start on a path to developing codes of Welsh law.

May I thank the Counsel General for his statement, welcome the aim and enthusiastically support this proposal to consolidate and codify Welsh law? There is a huge need to simplify our law and to make it easier for people to understand legislation in one place at one time, because that’s essentially what we’re talking about here. Of course, we’re quoting Aristotle here, but I would also return to our own Welsh history, and the laws of Hywel Dda—Hywel the Good—back in 962. We did have Welsh law at that time and, naturally, which was perhaps simpler than the law that we’re dealing with today. I don’t think that Hywel Dda, perhaps, had actually considered the need to codify and consolidate law then, but he was an innovator, and these were the first pieces of legislation in this nation that looked after the interests of women, for example. Hywel Dda was an innovator, and I’d like to think that we too could innovate, as you have said, as a young Assembly, in these issues of making law.

At the end of the day, it’s important that any piece of legislation can be read in one place, and that it’s accessible to all. That doesn’t happen at the moment, and, of course, you need a degree in law to tackle that. As you’ve already mentioned, at a time when people can’t afford a lawyer and represent themselves in court, we have to have that general capacity to read legislation without the need for a degree in that particular area. So, I warmly welcome the intention to make it easier to deal with the law and to codify what we have. As you’ve already said, there’s a whole host of legislation, and it can take over whole buildings. That’s not going to assist us in actually making law accessible.

There are a few questions, of course. We do make Welsh law now. There are a number of pieces of legislation in education and health in Wales that are significantly different now since devolution. Of course, they don’t fall easily into the ‘England and Wales’ definition that you mentioned. So, we have been making Welsh law—a number of pieces of law since devolution, and particularly more recently—not just in terms of health and education, but there was also the innovative organ donation legislation—the first example in these isles of such legislation. So, we can build on that innovation and not just innovate in terms of our proposals for legislation, but be innovative in how we make and deal with that legislation.

Of course, we have a problem or a challenge in the absence of a single legal jurisdiction for Wales. We share a jurisdiction with England. I would like to ask, with all of this talk about the Wales Bill, what specific discussions the Counsel General has had in order to tackle this problem. Things would be far clearer, of course, if we did have a single legal jurisdiction for Wales. It would be far easier—it would also be far easier if the police and courts and so on were devolved to Wales and that had happened already, as has happened in the other nations of the UK, and in Manchester. What is wrong with us? What is wrong with the Welsh? In the face of the challenge of losing some powers as a result of the Wales Bill, I would like to know more about the role of the Counsel General in pushing for a single legal jurisdiction for Wales, which would make things easier, as I’ve said, and not actually losing sight of the need to devolve policing and the courts here to Wales. That, too, would make things far simpler, because we do make legislation in this place.

Now, you mention possible difficulties relating to Europe and leaving the European Union. Naturally, there are a number of factors to be taken into account there, but what we don’t want to see is powers being lost. We expect to see legislation relating to Wales being repatriated to Wales, and I would like an assurance, in all of these discussions, that we are not going to actually lose that legislation that is pertinent and relevant to us here in Wales. Now, naturally, as part of that, we could codify and make it all part of this consolidation and codification, but, more importantly, we don’t want to see any powers lost in those areas of European legislation that are pertinent to us in Wales.

There is a Welsh dimension, as you’ve already mentioned, and there is also a Welsh language dimension. We have been developing subordinate legislation and primary legislation bilingually here since the inception of the Assembly, and, of course, the Counsel General will be aware that the one language isn’t a pure translation of the other—there is an element of interpretation, too. And, of course, as we develop that legal expertise in the Welsh language, we also need to develop the expertise to interpret and to ensure that what is stated in one language is fully transferred in the other, and that is a matter of interpretation, not just a matter of pure translation. Let’s not forget that, as we seek to codify our law.

As you say here, it is a significant challenge, and you quote:

mae taith o 1,000 o filltiroedd yn dechrau gydag un cam bach.

Now, in Welsh, there is a saying that ‘deuparth gwaith ei ddechrau’.

Dwy ran o dair o'r gwaith mewn gwirionedd yw dechrau arno.

Therefore, I wish you the best of luck in this innovative work. Thank you.

Well, can I thank the Member for his thoughtful comments, and also for taking us back to 962? Over the last week, I think I’ve spent a considerable amount of time in the Supreme Court, examining some 20,000 pages of documents taking us back to the 1300s, and there was some reference to Welsh law, but the history of law is important. This is an exciting project, an exciting step forward, because we are looking at the commencement of a process of the codification of a whole new regime of Welsh law, of codification of law leading to what I’ve said previously in this Chamber is an inevitability, and that is the establishment of a jurisdiction. How we get there, how long before we get there is obviously a matter of debate, and, of course, the Member raised the issue of the Wales Bill, and he’ll be well aware of the statements made by the First Minister in respect of the jurisdiction and also the statements that I have made. There will be some recognition of the body of Welsh law within the Wales Bill, but there has not been, as far as I’m aware, any concession in respect of the specific jurisdiction point. But as I say, we are on a road and I think it is inevitable that we will eventually get there.

I’ve been very cautious in terms of the approach I’m adopting, because what I am very wary of is there is a lot of work; this is an incredibly complex task, and it is a resource-driven task as well, and I’m very wary of the environment we’re in at the moment, with the major constitutional change we are going through, not just in terms of the UK but in terms of the European dimension and so on. And it’s important that nothing is done that actually obstructs (1) the legislative programme of this place, but also the fact that we may need to respond quickly and responsibly in respect of our devolved areas, our own constitutional status and the issue of European laws and the complications that may arise there. But I believe that by adopting the approach of a pilot, we can already identify that there are laws where a certain amount of codification has already taken place, where there are what you might describe as ‘quick wins’ in respect of codification, starting the process and learning from that process, as well as to the resources that will be needed, but also where there may even be overlap in what we may be required to do in respect of European laws. What is also very interesting as well is the extent to which we’re now seeing increasing publications in respect of Welsh law. I was at the launch the other week of a book on administrative law in Wales. For some, that may not seem to be a particularly exciting evening or prospect, but the fact that you now have a publication that is wholly devoted to the issue of Welsh administrative law and that we now have the move towards the appointment of a president of Welsh tribunals—. Those things are important and they all go together.

With regard to the issue of the European changes and the issue of devolved powers and what may happen there, that, of course, is moving in to another debate. Of course, the Member will be aware of the statement I made with regard to article 50. Probably, what is best is that I will defer commenting again, going over old ground on that, because we are now, of course, awaiting the judgment of the Supreme Court. And the Member will also have seen the very detailed submissions we put in, which set out how we see the Welsh devolution settlement, the issues that were raised in that article 50 case on sovereignty, but also the role of this place in respect of the Sewel convention and the status of that within the UK devolution structure.

Can I just start by saying I’ve learnt something that the laws of Hywel Dda are dated to 962, and Dai also mentioned this, but Hywel died in 950? But I suppose it took the monks of Whitland a little while to produce the manuscript. But, anyway, it does seem that our law making and dealing with our fundamental constitutional law takes a little while, so perhaps I should bear that in mind. Can I welcome the statement and also the Law Commission’s report ‘Form and Accessibility of the Law Applicable in Wales’? I look forward to a fuller response to that report, which is now entangled in the pilot project, it seems to me, if I’ve inferred, from what the Counsel General said, correctly. But when that response comes more comprehensively, I think it would be very useful, as it’s an excellent report in my view.

Can I say that I do agree that we now have a window of opportunity to consolidate and even codify much of Welsh law? I do regard consolidation as highly desirable, but the other end of that virtuous spectrum is full codification, which indeed would make us unique in the British isles and I think would be a shining example in the spirit of Hywel Dda in many ways. It would certainly make the law clearer and more accessible. We have that window because we’re a new institution, although we’re now in our fifth Assembly. Of course, it’s only the second one, effectively, with law-making powers. But this opportunity won’t last forever, so I do welcome the initiative you are taking.

I commend what Dai Lloyd said about bilingual law making. I think this is sometimes overlooked. When you legislate bilingually you can illuminate legal principles better in one language than in another sometimes, so they need to work effectively together. It is certainly not a sophisticated form of translation; it really is something that goes together and feeds off intellectual process in both our linguistic traditions. Can I just say that the Conservative group will be very keen and willing to co-operate in this much-needed reform?

Can I just test you, then, on how this is going to be taken forward? The feasibility of consolidation is now to be evaluated in a pilot. You say that that will conclude next year, presumably towards the end of the year, but can I urge you to keep to that tight timetable because we will be well into this fifth Assembly term then? And I would like to know how the pilot is going to operate. Will it take a piece of impending legislation and actually present it in a consolidated fashion? We missed opportunity after opportunity in the fourth Assembly—I think most egregiously, the heritage Act—and so I do hope that we could come up with a living example of a consolidated Welsh Bill, or, as it seemed from your statement, we could also draw the conclusion that you’re just going to embark on a retrospective exercise to see, really, what would be required with the existing body of law. So, I would urge you to actually produce a consolidated Bill for this Assembly to consider; I think that would be most useful.

In evaluating the pilot, what measures will be key—cost, efficiency, efficacy or capacity? I’m sure we need to know where our strengths lie, where they need to be developed and where it would be in the interest of Welsh society to develop them. For instance, a more effective legal profession with greater high-level capacity in Wales, that seems to me something that would be highly desirable. You commended the Law Commission, but you didn’t say how they might co-operate in all this because, of course, they’re a key resource in producing consolidated legislation. I think it’s something that you need perhaps to bring to the Assembly’s attention.

Then, can I just ask: what is the likely outcome if we, as I’m sure we all hope, believe these objectives are feasible? Are you then going to produce a timetable for major areas of law to be consolidated, because that will obviously take, I don’t know, a five or 10-year programme? But there will be times in the Assembly when we will have a particularly useful period to consolidate less controversial areas of law, perhaps early in a new Assembly term when there’s often not much legislation before us. That’s a key opportunity, I think.

Can I just also say, Llywydd, that it’s clear that our own procedures—the legislature’s procedures here in the Assembly—will also have to be adapted, and we will be very co-operative in this? We will need a fairly nuanced set of procedures, I think: consolidation where there are no changes to the law, just a clearer statement, I think they can be fairly express procedures; consolidation with some non-controversial reform, we wouldn’t want the full process of scrutiny necessarily on non-controversial reforms—for instance, where the law is made more accessible by being less archaic, those sorts of reforms probably don’t need the full legislative process; and then consolidation that also requires reform in some controversial areas will require very particular attention, and may need to be separated out of a large statute so that it can get full scrutiny. Thank you very much.

Thank you very much, and also thank you very much for almost leading the way, really, through the CLAC report on the whole area of codification. I think it’s important that’s acknowledged, because a considerable amount of work has gone on over previous years, not only through that, but with my predecessor and others as well. And of course, in due course, I’d like to make a further statement and to provide further information.

The engagement of the Assembly and all the political groups and the individual Assembly Members is important, because it will be important to understand what the issue of consolidation and codification is about. Codification will provide clearer categories of law, but the consolidation part of it is taking various laws and bringing them together in a simpler and understandable form, removing irregularities and contradictions, and so on, that may exist, and almost certainly will exist. Of course, what we don’t want to do is to apply necessarily the same process of scrutiny that we apply to new laws to ones where what we’re doing is effectively bringing together in a more accessible form the existing law. So, having an expedited system that is acceptable and is trusted by all those involved is going to be extremely important. The Law Commission makes a number of recommendations about that, but part of the engagement process, both with the Presiding Officer’s office and with Assembly Members themselves, will be to actually work that out and to look at that process. That is something that we’re actually going to start, as well as the consideration as to how we actually formalise it and possibly move to the establishment of a specific office that will deal with this process and bring regular reports to the Assembly and programmes of codification.

As the Member says, it is a very long-term process, but it is also one that will then set the parameters in respect of how we legislate in this place, so that if we are amending legislation, we amend within a code, but if we are legislating in a new area, we take the opportunities to actually ensure that fits within the context of the code. So, there’s still a lot of work to be done on that.

In respect of how we might evaluate the work, I think the first step is, really, to try and identify those areas where, as I’ve said, there might be quick wins, and culture and heritage is one. A lot of work has already been undertaken with the Law Commission in respect of planning. Planning is not only an extremely important area in terms of the commercial and business interests of Wales, but it is also an area that, because of the amount of work that has already been undertaken, will be a major project that is going to be ongoing and will be part of that process. We can look at some of the legislation we’ve already undertaken in respect of social care where, for example, there has been quite a degree of codification taking place.

So, I think over the next year or two, there is a possibility of actually showing in practice how we may codify certain areas, but whilst we’re learning from that process, also learning about what may need to change in respect of Standing Orders, but also what will probably be required in the way of legislation to put this on a statutory footing, because I think once we’ve evaluated it properly, we need to carry on into the future. This isn’t something that we dip in and out of. I say that cautiously because, as I’ve said, I’ve already put the caveats I have in terms of resources and in terms of the particular demands that we may need, so we’ve got to make sure that what we do is workable, but also has the flexibility so as not to be a process that actually obstructs us as an operating legislature. I think I’ve covered most of the points. Thank you very much.

It seems to me that, on a quiet Tuesday on the run up to Christmas at around 5.05 p.m., the Counsel General stood up in the Chamber in a very measured and calm way and said something that was quite a landmark moment in terms of legislatures within the UK and internationally, and I commend him for doing so. He has put his comments forward in a very measured way, in a very calm way, and reassured this Parliament that he will take this forward, he will ‘tread cautiously’ I think were his words, on a very long journey and this might take very many years. But I wonder, on this quiet afternoon, if he were successful, the repercussions of the journey that he’s just set out on might not only be long lasting, but extremely influential as well, across other legislatures. What he has, in effect, said is that he’s going to approach the issues of clarity, simplicity, transparency and accessibility of the law, not only to those who make law, but to the members of the public who need to understand the law—the citizens of this country—in a very different way.

We look across the plethora of legislation that has accumulated, not simply over years and decades, but over centuries, and the complex jungle of legislation that that has built that underpins our current legislation, and how difficult that is, then, to navigate the way through that. So, in setting out on what he has described very moderately, in very moderate terms this afternoon, I think he has picked up already the appetite from members of the Constitutional and Legislative Affairs Committee, a desire to wish him well in the hope that he succeeds as he takes these steps forward.

I pay tribute, by the way, to predecessor committees as well—the Constitutional and Legislative Affairs committee under the stewardship of previous Chairmen, including David Melding himself, who put some of the underpinning thought to this, alongside the work of others, such as the Law Commission. As Members will be aware, our predecessor committee published a very comprehensive and wide-ranging report, ‘Making Laws in Wales’, in October 2015, and in that report it was noted that the Law Commission was keen to develop closer links with the committee and provide regular updates of its work every six months. Well, the first of those meetings, I can report to the Assembly, took place at the start of December, when we received a briefing on the Law Commission’s ‘Form and Accessibility of the Law Applicable in Wales’ report, and we discussed its findings at length. Clearly, both our reports covered very similar ground. At the heart of each is a desire to ensure that law made in Wales by this Assembly is accessible to all our citizens. It’s a fundamental pillar of our democracy.

The ‘Making Laws in Wales’ report recommended,

‘that the Welsh Government, in collaboration with the Law Commission, develops a long-term plan for consolidating law in Wales.’

So, it’s pleasing, therefore, for the Counsel General and the Welsh Government to indicate support for the development of procedures for consolidating the Bill, which was also a recommendation of our predecessor committee.

That committee didn’t look at the issue of codification. I’m sure we’ll want to look at this issue further, bearing in mind the statement today, but I think he can pick up already, from the comments of committee members, that there’s a clear interest and, in some ways, an excitement around the potential of this proposal. I believe, as a committee, we are well placed to explore how we can take forward the delivery of more accessible law to our citizens.

So, we wish him very well on this journey, beginning with a few small steps, looking at piloting this within certain areas. David Melding has already commented that there may be areas that we could look at within this session of this Assembly that we could actually bring forward and see codified law, if that is the way forward. I can’t compete with Hywel Dda or Aristotle, but it is probably pertinent to use that line from that old joke, which is, ‘You wouldn’t want start from here.’ This is going to be quite a journey. The complexity of what has been inherited could be quite overwhelming, but our advantage is that we are a young and dynamic institution. If anybody can do this, we can. In that regard, it is very exciting indeed. So, good luck to the Counsel General. Good luck to us in taking this forward as well. We are pioneering, and that’s what this place should do.

I thank the Member for those very positive and encouraging comments, and wishing me well. I felt for a moment as though I’m heading towards the executioner’s block with the amount of bonhomie that was being directed towards me.

These proposals are a test of the maturity of this institution as a Parliament and he correctly makes the point that this will be the first Government within the United Kingdom to actually go down this road in, I think, a disciplined, organised way. It’s important that we understand what the underlying principles are. They are, as a legislature, that the legislation we produce is of quality, excellence and relevance, but fundamentally is accessible, and accessible to the citizens of Wales, but also as an example to those who would invest and do business in Wales that we have the clarity, availability and accessibility of law that makes it so much easier. I think this is something not just in terms of our role within the UK but within Europe, and internationally as well. So, yes, it is a challenge. It is going to be a challenge for the whole of the Assembly because we’re going to have to have the discipline to actually see this through collectively. And, yes, he says that I maybe wouldn’t want to start from here. I would say there’s never a good time to start but start we must.

We’ve definitely started, I think, on this journey. Thank you, Counsel General.