8. Statement by the Counsel General: Consultation on the Draft Legislation (Wales) Bill

Part of the debate – in the Senedd at 5:47 pm on 20 March 2018.

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Photo of Jeremy Miles Jeremy Miles Labour 5:47, 20 March 2018

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.