Item 8 on the agenda this afternoon is a statement by the Counsel General: consultation on the draft Legislation (Wales) Bill. And I call on the Counsel General, Jeremy Miles.

Thank you. A little over a year ago, my predecessor as Counsel General announced that the Government was beginning a groundbreaking process to create codes of Welsh law. This was the start of a long journey, and it is with great pleasure that I can now announce plans to embark upon an ambitious new leg to that journey.

Today, I am launching a public consultation on the draft Legislation (Wales) Bill. This Bill will impose obligations on the Welsh Ministers and the Counsel General to make Welsh laws more accessible, and it also makes bespoke provision about the interpretation of Welsh legislation.

One of our most fundamental roles as a Government is to protect the rule of law, and to do so, we must ensure that devolved law is accessible and understandable. We recognise that a clear, certain and accessible statute book is an economic asset. It gives those who wish to do business in Wales a more stable and settled legal framework. This, in turn, should help investment and growth. Public sector bodies and other organisations will more easily understand the legal context within which they operate, and policy makers within Government will have a clearer basis from which to develop new ideas. Legislators will find the scrutiny of laws easier, and it would make an enormous difference to those of us who may wish to use the law in Welsh.

But this is first and foremost a question of social justice. Making the law accessible is vital to enable citizens to understand their rights and responsibilities under the law—something that has become increasingly important since repeated cuts have been made to legal aid and to other services designed to advise those in need of assistance or representation. 

We are the custodians of the Welsh statute book, made up not only of the laws made by this Assembly and the Welsh Ministers, but also those pre-devolution laws that we have inherited. That element of the statute book, in particular, is, frankly, not in a good state. In recent decades, legislation has been allowed to proliferate without pausing to fully rationalise and integrate what is new with what had gone before.

A statute book of thousands of Acts and statutory instruments has long been difficult to navigate, but Welsh legislation is even more inaccessible due to our highly complex system of devolution and the absence—because of the single England and Wales legal jurisdiction—of a formal body of distinct Welsh law. It is difficult for the people of Wales to know what the law means and to understand who is responsible for what. That undermines democratic accountability.

So, this Government is committed to a systemic, ongoing and comprehensive consolidation of legislation within our competence, and the organisation of that law into subject-specific codes. Whilst this will be groundbreaking in the UK, we will be following similar precedents set across common-law jurisdictions. Australia and Canada, for example, have routinely consolidated their legislation since the beginning of the twentieth century, after inheriting laws from the UK Parliament in not dissimilar circumstances. The United States went a step further and created a code of law in 1926 that has been maintained ever since.

But we need not only look afar for examples of good practice. The laws of Hywel Dda were organised in codes, and the lawyers of the day had access to those laws in one book. So, codification is an important part of our legal tradition, and our task now is to make sure it's a part of our legal future. We in Wales have done this before, and I am determined that we will do it again.

Our vision for making the Welsh law more accessible is not confined simply to rationalising legislation—significant a task though that is. A well-ordered and clearly drafted statute book must also be effectively published, and supplementary material is often needed to set out the context and fully explain the practical effect of the law. For this reason, further improvements to the legislation.gov.uk website, operated by the National Archives, and to the Cyfraith Cymru—Law Wales website are intended to form part of the programme.

Making bespoke, bilingual provision about how our legislation should be interpreted is also part of our wider ambition to make Welsh law more accessible. An Interpretation Act was first enacted by the UK Parliament in 1850, and this practice has been replicated in common-law jurisdictions across the world, including in Scotland and Northern Ireland.

To date, Wales has not had its own Interpretation Act. Rather, we rely on legislation enacted by the UK Parliament in 1978, and later modified in an attempt to take the existence of Welsh legislation into account. In light of our rapidly developing body of Welsh legislation, I believe it is now time to correct that anomaly and to develop our own specific provisions for Wales.

I believe, therefore, as a matter of principle, that our legislation should be accompanied by its own provisions on how it should be interpreted. Furthermore, the 1978 Act is now 40 years old and is in need of modernisation, which we are taking the opportunity to do in our Bill.

Importantly, the existing arrangements do not properly take into account the bilingual nature of our legislation, and the equal status of the Welsh and English language texts. The 1978 Act was, of course, made in English only, and it defines terms in Welsh legislation in the English language only as well. This must be remedied—something I know that was of concern to the Constitutional and Legislative Affairs Committee of the fourth Assembly and the Law Commission.

I hope, then, that you will welcome this important milestone in the development of devolved government in Wales. The draft Bill is intended—designed—to help make Welsh law fit for the future and will, I’m sure, become a foundation stone for the emerging Welsh legal jurisdiction. It is a draft Bill both of constitutional significance and practical importance to the people of Wales.

I invite Members to consider not only the draft Bill that is published today, but also the vision for the future that underpins it. And I encourage all interested parties from across Wales and further afield to help shape a Bill that will improve the way Welsh law works and, most fundamentally, will help all those affected by the law to find it and to understand it.

Can I start by welcoming the publication of this draft legislation Bill, and also the consultation document and the period that will now be given to that consultation of nearly three months? I do think that these are profound matters and they need extensive consultation. I know that the Government will be very interested in the range of opinions that it hopes to receive back in this process. On this side of the Assembly, we completely share the aspiration to make our law more accessible. I think it is of overriding public interest that we do this, and I can think of few better tasks in terms of what we need to do in the technicalities of our law making—but, as to a new institution, a new Parliament, to really set the highest standards for the rest of the UK, potentially, in the way that we do this.

Needless complexity, without any doubt, undermines democratic accountability. We are currently in a system where much of the statute book cannot be understood by quite gifted lawyers. You need to have real expertise in a particular area of law to be able to interpret it, and this can hardly be good, I think, for the public space in which we hope many people with various interests who need to access the law at any one time can do so. Consolidation of the law is also highly desirable. Again, as a new institution—in fact, we are only seven years old as a Parliament, really—we can aim to have a statute book that is in much more rational, consolidated shape. I ought to remark that we have not done brilliantly so far. That's because it's not easy to consolidate. I do accept that. But, I still think, on the major areas, we should make that investment. For instance, on planning, we're about to see, but, in other areas of major pieces of public law, I think we should start to work through them and consolidate them. As the Counsel General noted, in other jurisdictions, they have met these aspirations, often at a time when they have inherited a large body of law as new legislatures. So, I think that's what we should do. I'm really pleased to note what's in the draft at the moment about the ability of a range of materials to help people understand the law, and the references you made to the website and the national archive, I think, are very important. For the interested layman, that's where they are really going to be able to have some sort of understanding.

I do need to ask a couple of questions, so can I do this in the spirit of an early consultation response, almost? I would like some clarification on the interpretation Act side of it. You are quite right: the Learned Society, for instance, a couple of years ago endorsed the need for an interpretation Act, particularly over bilingual legislation, but it would also allow us to modernise the 1978 Act. But, I think we need to know how any new Act here that the Assembly passes will sit with the 1978 Interpretation Act, because that will still be drawn on, as far as I can work out. Is the Counsel General attempting to set up separate principles of interpretation that would apply in Wales but currently not inherent in the 1978 Act? Can I just say also, in terms of the scope of what you're trying to do—? I turn to Schedule 1. Very important concepts such as land and a person are contained there. I just wonder if things of that magnitude should actually be in an interpretation Act, which is generally about common and technical terms. Is it not the case that some very powerful concepts actually do need to be interpreted by each Act we pass, so that they can be very tight and specific? I know that there's a bit of a dilemma in all this, but I would ask him to reflect on those two particular examples that stand out to me.

In terms of accessibility, I think we need a vision for how all this is going to help the, and I quote, ‘impenetrable mess' that is Welsh law. Now, where does that quote come from? Well, a much better source than me: Lord Lloyd-Jones, the Supreme Court judge. And if a Supreme Court judge tells us that the law at the moment is an impenetrable mess, we obviously need to ensure that what we pass now as a legislature—I think you’re right that, at some point, it will be recognised as a jurisdiction, but that’s still a sensitive issue—is rational, accessible and clear.

I think we need also to have an idea of how the code is going to work, as you’ve referred to other jurisdictions that have used this approach. But, you know, in practical circumstances, would we have a social care code? Would we have a healthcare code? Or would you try to sort of link those? Similarly, would there be a planning code and a different environmental code? There’s a lot of nuance in how you approach these things, and I think some sort of idea of how many codes or how comprehensive they’re going to be would be useful. And would laws that are contained in certain codes be able to grow outside those codes? Because, again, they do interrelate very, very often.

And finally, can I just say, in section 20—and this is an appeal as a former chairman of the Constitutional and Legislative Affairs Committee—? Section 20 deals with directions. They are very difficult to keep track of, ministerial directions, and I wonder if he has considered a formal and structured approach to their publication, along the lines of the approach that we currently have for statutory instruments. I think that would add greatly to the accessibility of Welsh law. Thank you.

Can I thank the Member for a range of incredibly perceptive questions and for the attention that he has paid to the consultation, which I greatly value? There are a number of questions in his contribution. I hope I'll do justice to them.

Underlying the points that he makes more generally, I suppose, is the idea that there's no time to lose, if you like. There is a body of law. We are a relatively young legislature still. We need to grasp the opportunity, because, actually, the problem becomes more and more intractable the longer we leave it, and I would absolutely endorse the sentiment behind his contribution in that respect.

He will know, of course, that there has been activity around consolidation thus far on a piecemeal basis, if you like, and there’s been work in particular in the historic environment space and, as he will know, in conjunction with the Law Commission on a planning consolidation, which he referenced in his remarks. Looking forward, there are areas that lend themselves pretty obviously to consolidation and codification. Local government law is an example. Education law is another example. And I’ll say in a little while how I think a code can work in some of those areas.

But the core idea behind the draft Bill is to move from that piecemeal approach to it to create a sense of direction within Government, within the legislature, that this is an objective and an aim that we are moving progressively towards over time. Having said there’s no time to lose, this is not, as he, I’m well aware, knows, a short-term project; it’s the work of a generation, really, and you can imagine it extending over decades, depending on the level of resource and the level of progress that any particular programme can make.

In terms of what a code could look like, I don’t envisage the code having a kind of separate legal personality, if you like. So, with any code, I imagine it to be one or two, or perhaps more, depending on the complexity of the subject matter, principal Acts that consolidate perhaps three or four topics within education, say, just to take that as an example for this purpose, and then you’d have beneath that the statutory instruments relevant to that particular sub-topic, if you like, and beneath that—and this really relates to the question he ended with, around the directions—the soft law, with the codes of practice and other guidance so that it's all comprehensively available in one place, and a kind of legal hierarchy that we all operate to and understand very well. That's the vision that's contained within this consultation, really. The critical thing, as, again, he acknowledged, is that it needs to be maintained. We've seen plenty of examples in the past of pretty significant consolidation in many legislatures, actually, and then a new government comes in, reforms the law, but does it through a stand-alone Act that undermines the consolidated nature of what's gone before. The objective is to avoid that, and so you would—. A critical part of this is that the codes, once established, are maintained as codes. So, effectively, if there's one Act before the reform, there should be one Act after the reform, really. That would be the broad principle, unless there are very good reasons to depart from that. That's essential, really, to the question of accessibility.

He raised a number of points in relation to publication to go with that. We are some way away from where we need to be in terms of having an online resource that is both current and authoritative across primary and secondary legislation in both Welsh and English. We are a long way from being able to achieve that objective. I met last week with the National Archives, the Queen's printer, to discuss this particular challenge, and there's a particular challenge about resourcing the Welsh language aspect of that because they don't have the resources, obviously; we do here. So, there's a discussion in relation to that aspect.

He asked some questions on the Interpretation Act. On particular definitions, the existence of a term in the Interpretation Act obviously does not preclude that term being differently defined in a particular Act if that's necessary for the purpose. One of the issues, I know, that his committee has raised in correspondence with me in reports for previous legislation and statutory instruments is the question of section 11 of the previous Act and how that can be confusing, and the proposal in this consultation is that that would not apply to the new Wales-only interpretation Act, but that the face of an Act would spell out that rule, or spell out the definition, making it easier for an individual reader to access the point. The objective is to have a clear and hopefully memorable date—1 January, perhaps, in any year—so it will be absolutely clear what the cut-off point is for the application of the Act. In terms of what Acts and statutory instruments it would apply to, it would be any Act of this Assembly that post-dated that date, whatever it is, and any statutory instruments entered into by Welsh Ministers after that date, whether or not that comes under an Act of the Assembly or an Act of the UK Parliament. So, it should be pretty straightforward to understand the application of the new provisions.

Thank you. Can I just gently remind Members that it's a 30-minute statement, and we are on nearly 21 minutes. Simon Thomas.

Thank you very much, Deputy Presiding Officer. You’ll be pleased to know that David Melding has asked most of the questions already, so I will focus perhaps on our approach to all of this. It’s true to say that there won’t be many champagne corks popped following today’s statement, but they should be, because this is an important statement. For the first time, we are stepping out of the shadow of Westminster in the way that we draw up our legislation. I welcome that. And as we turn our backs on the European Union, we are opening the door to a far more European approach to legislating and to making legislation more accessible to the public. The Counsel General was right in focusing to a large extent in his statement on social justice. I have used this example in the past, but it remains true that a constituent came to me ardently stating that the housing legislation was related to him, because the law said that it applied to England and Wales, but it was England-only legislation, if truth to be told. Therefore, I welcome the statement and I do hope that the consultation will lead us in that direction.

Just a few questions, therefore. It’s clear that we as Plaid Cymru believe that there should be a separate legal jurisdiction, and that it would be far easier to deliver many of the things that the Counsel General set out, if that were to be the case. But can you explain how this consultation work will go hand in hand with the work of the commission on Welsh law that has been established by the First Minister—and Lord Cwmgiedd is chairing that—and how those two pieces of work are going to dovetail?

Now, I am still quite unhappy with the fact that we don’t have a fully bilingual website and materials available. You say that the Queen’s printer doesn’t have the resources, but, whilst we have an England-and-Wales jurisdiction, it is their duty to provide appropriate resources so that people in Wales can access Welsh law in a bilingual format, because we do make bilingual legislation in this place.

I think it’s unfortunate that, after some three or four years making this case, we're still lending members of staff from Welsh Government to the National Archive, and they still haven’t got to the point where we should have reached. So, can you tell us what further work you will be doing here? Because there’s no point having codes and consolidation of the law if people can’t access the law and can’t understand what that law is and what it does.

Now, I know that you’ve responded to David Melding on this issue, but could you just explain a little more on how these various codes will be drawn up? You referred to the history of Wales and the code of Hywel Dda. There was more than one, unfortunately: the Gwynedd code, the Dyfed code, the Gwent code—there may have been codes that haven’t survived, even. Now, I accept that there will be more than one code, related to more than one area, but how would you see the Government, or, rather, the Assembly, getting a grip on the development of these and ensuring that they remain appropriate and fit for purpose?

Related to this is the fact that you must place the duty not only on this Government and the current Counsel General, but also future Governments. How exactly will you place that duty, because any future Government would be able to overturn that or ignore it? So, how do you think you can set this commitment in stone? I know that you’re in favour of it, but we will need to see how it develops in future.

On the European mainland, Napoleon was most well-known for developing such codes. Now, I’m not suggesting for any moment that you would be a little Napoleon here in Wales—I would prefer to see you following in the footsteps of the greatest lawyer that we’ve had in Wales to date.

Thank you for those questions, which touch on several different areas. The first question about the relationship between this and the work of the commission—one of the things that the commission looked at was that question of accessibility to the justice system in general, and that was in a wide-ranging way. As I said in my comments, I think it’s vital in a context where we’re losing legal aid and it’s generally more difficult for people to access legal advice. There’s a specific duty on us in that context, and on Governments, to make the law as accessible as possible and to publish law in several ways, so that people cannot only find it all, but understand it when they do find it.

Another element to that is that the commission is looking at the question of the jurisdiction, and consolidation and codification will restate this legislation as Welsh bilingual legislation. It completes that category of Welsh law in a much more understandable and specific way. So, that contributes to that debate.

I share his disappointment with the progress that we’ve made in terms of having a bilingual, dependable website for Welsh law. I have had very recent discussions with the Queen’s printer about this issue to see how we can move this issue forward. What I would say is that the linguistic element is a very specific one here, but in the England jurisdiction the shortcoming relates to the fact that the legislation there isn’t current either. So, this is a challenge across the United Kingdom, unfortunately. I have been discussing with them something that they’re developing for the Department for Environment, Food and Rural Affairs in the Westminster Government, which is DefraLex, which is some kind of temporary index so that people can find everything within a particular area even if it hasn’t been consolidated yet.

With regard to how the codes would work, there would be a duty on the Counsel General within six months of every Assembly to put forward a scheme or a plan. There will have been a public consultation on that, and Ministers will have agreed on the contents of the plan, and they'll have to look at the time at what areas are ready for reform, and there will be an opportunity then to codify. And if something has just been reformed and there's a period of policy silence, as it were, then that would also give us an opportunity to do some of this work.

I foresee that there will be a plan, and there will be several projects within that plan. Maybe some projects will take more than one Assembly term to complete. So, if that's in train when the next Government comes into power, then it would be possible for the Government to stop that work, but it would be much more likely, I think, to develop that scheme for the future. There will be a legal duty on the Government to bring forward a scheme, but the content of that will depend on the legislative circumstances and the general legislative programme of the Government at the time.

I regret having to perhaps pour cold water upon the enthusiasm of my neighbour here for moving Welsh law in the direction of—

What a surprise.

—European jurisprudence, but I'm sure that the Counsel General will agree, because it's mentioned in the statement itself that codification can also occur, of course, in common law jurisdictions, such as the United States and Canada, and merely making sense of the disorganised, uncontrolled development of a series of different statutes or Orders and consolidating them into one single unit that can be more easily accessed is not quite the same thing as moving in the direction of a sort of teleological approach, such as is found in European law jurisdictions.

I have myself been a consolidator at times, as the editor of Butterworths' Land Development Encyclopaedia more years ago now than I care to remember, and I had annually to update any statutes or statutory instruments that were produced in the year and put them within the confines of one book, removing what had been made redundant and inserting the new measures, and this is an entirely benign process, which doesn't necessarily mean any change in the corpus of law itself. Nobody, rationally, could object to what the Counsel General said was the aim, which is to make law accessible, to enable citizens to understand their rights and responsibilities under the law.

One of the big problems with the law today, of course, is the extent to which it has grown, year in and year out. When I was, many, many years ago, a tax practitioner, Butterworths published annually a tax code. In 1965, it was 750 pages; it's now 17,000 pages and has been increasing year in and year out. The more law there is on the statute book in various forms, the more inaccessible, inevitably, it becomes and the more specialist it becomes. But it is vitally important that we should make it as easy as possible to navigate around these various tributaries. So, I welcome this exercise.

Nobody could object to a consultation. Whether this leads to the grander enterprise of creating a separate jurisdiction for Wales is another matter altogether, although I've had a couple of very interesting conversations already with Lord Thomas of Cwmgiedd about this, and he does make some very important points about the practicalities of the law within Wales developing sufficiently well to serve people in a practical sense by merely such nuts and bolts issues as developing a system of forms, for example. And that cannot easily be done within a legal system that is currently directed and controlled from London. So, I do see this as a benign development.

I am concerned about the possibility of an interpretation Act for Wales possibly making it more difficult to understand the law than easier, to the extent that it might be that the interpretation Act itself might be interpreted as conflicting with whatever measure might be in force in England. I know that there are interpretation Acts in Scotland, and this may not be an insuperable difficulty, but it is vitally important that as the law in Wales inevitably diverges from the law of England—and the devolution process and, particularly, leaving the EU is going to accelerate this and expand this process—we should, at least in interpretation terms, so far as we can, align both the canons of interpretation and the way in which they operate in a way that is unified throughout the United Kingdom. Otherwise, that way, even greater confusion lies. So, I hope that the Counsel General can at least on that point satisfy me in the course of his response today.

I thank the Member for his questions. Just in turn, he mentioned the changes to the corpus of law and the amendments that might come as part of the consolidation. It's very important to underline the fact that a consolidation exercise is not about law reform, and, in the discussions we've had with the Assembly Commission about the procedural requirements that a consolidation exercise brings with it, it's been absolutely crystal clear that what we're not talking about is policy change; it is really about ensuring that the law functions better, if you like. And, actually, he mentions the point about the jurisdiction—I mean, that is not the principal aim of what's comprised in this consultation. I would echo his point that, really, it's about a practical application of the law, making it more intelligible and making it more accessible in a very day-by-day way. That is the principal objective of my proposal in this consultation.

On the question of the Interpretation Act, the reality is that the 1978 Act has a lot of material that is not relevant to legislation made in this place through the devolution settlement, and, of course, it's only in English, so there's a whole body of authoritative law that we pass here that does not have its own interpretation Act, and that's the Welsh language version of every Act that we pass. And so it's absolutely vital that both those two aspects are addressed and the consultation contains proposals for that.

I think, on the question of conflict, to my mind, the most important thing is that we have an interpretation Act that works for the devolved settlement in Wales and that it's very clear when that Act applies and when the Interpretation Act 1978 applies so that lawyers and members of the public accessing legislation with crystal clarity understand where they go to understand the law.

Thank you very much, Counsel General. Thank you. And that brings today's proceedings to a close. Thank you.

The meeting ended at 18:07.