4. What assessment has the Counsel General made of how laws in Wales apply to the Crown? OAQ52282

I thank the Member for her question. The application of Assembly Acts and Welsh subordinate instruments of the Crown is an issue that forms part of the Government’s consultation on the draft Legislation (Wales) Bill. The consultation is open until 12 June, and I would encourage Members, if they haven't yet, to respond.

Thank you, Counsel General. As you will know, currently, the Crown is automatically exempted under laws passed in this place unless the provision is explicitly included. In the draft Legislation (Wales) Bill there is a proposal to reverse this so that the Crown and all its property will be automatically subject to Welsh law. Can you explain the rationale for this proposed change and if you still intend to proceed? 

It is a matter on which I'm consulting, and it's a matter that I think is worthy for us to pursue. I'd be interested in hearing the views of consultees on the matter. This is a step that was taken, for example, in Scotland in 2010. As the Member rightly says, generally speaking the default position is that an Act does not bind the Crown unless it expressly states that it does. The Crown in that context is the Crown and also Governments, including the Welsh Government. Several Acts of the Assembly do, of course, expressly bind the Crown—tax legislation, for example, and the Renting Homes (Wales) Act 2016—and others are silent, and when they're silent you can assume that the Crown is not bound. 

The rationale for consulting and advocating this position is that it would put, beyond question, whether an Act binds the Crown and would create a new situation under which the law would, by default, apply to the Crown just as it applies to citizens, as the Member in her question implies. The rationale for doing that, firstly, is clarity, because if you approach an Act and have to know that it only applies to certain categories of organisations and citizens, that is not a clear and accessible reading of the Act. But that assumption, if you like, that the law applies to all is a common-sense assumption, and in a democracy we would all assume that all organisations and all parts of the state are subject to the law unless the law says otherwise. 

What I would like to make clear, though, is that in individual statutes in the future it will obviously be open to this legislature to reverse that presumption, and I would expect it to do that where circumstances require that as the right outcome. 

Of course, the law also relates to Crown lands in Wales, which are held by the Crown Estate, which is not devolved in any way, and is a further complication in that regard. The Crown Estate raises some £0.25 billion a year from its estate in Wales, which refers back to the argument that we had about fracking. If fracking happened in Wales, much of it would happen on the Crown Estate, and there wouldn't be a penny coming to the Welsh Government, if truth be told, or to the people of Wales, indeed. Is it about time that we had this broader debate on the work of the Crown in Wales, the Crown Estate, the Crown lands, and laws related to the Crown? And is it time for the whole Assembly to have a debate on how we proceed, in a way that is appropriate for the twenty-first century, in our dealings with the Crown and the funds raised through the natural resources of Wales and should be available for the people of Wales?

As the Member knows, I've just answered the question with regard to the consultation on Welsh laws for the future. I look forward to receiving the Member's response to that consultation, which will enable me to respond further to his question.

Counsel General, in your answer to Bethan Sayed, you made it quite clear that the Crown couldn't make compulsory purchase orders for land, but if they got a reversal that treats the Crown as the same as an individual, are you in a position to say that, actually, that could change that, or are we still in a position where the Crown cannot purchase that land?

I thank the Member for that question and the opportunity to clarify the answer that I gave. The reversal in the legislative presumption, which the consultation sets out, would not affect the situation that I described to Bethan Sayed. The Bill would not change the meaning of the term 'Crown', for example, and it wouldn't have an effect on existing law. Just to reiterate: it reverses the presumption so that, in future, in order for the Crown and Government to be bound by statute, the Act will need to spell that out.

Thank you, Counsel General.