Part of 2. Questions to the Counsel General – in the Senedd at 2:32 pm on 6 June 2018.
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.