4. Statement by the Counsel General: The Legislation (Wales) Bill

Part of the debate – in the Senedd at 5:26 pm on 4 December 2018.

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Photo of Suzy Davies Suzy Davies Conservative 5:26, 4 December 2018

Thank you, Counsel General, for this statement, and also the comments towards the end there that this Bill will stand alone, regardless of political differences of view about jurisdiction and so forth, so that we don't get sidetracked by that during the course of the passage of this Bill. Also, I hope you won't mind, but I'm not in a position to answer the very question you've asked us as Assembly Members, about what advice we can offer you on how to restate bilingual legislation, but once this has been through the committee stages, I'm sure we will be able to assist you on that.

Yes, you're quite right to say that the UK statute book is vast and unmanageable, and I agree with you, and it's why I, and other Assembly Members in the past, have been very keen on Welsh law that consolidates, even if we haven't had our way on a number of these occasions—I'm thinking of park homes and the Historic Environment (Wales) Act 2016. But we've also failed in the past as well to persuade Welsh Government to reference other statutes within its own Bills, where such references are necessary to understand those Bills. So, for example, a definition can be included in a Welsh Bill by referring to its existence in a different Bill. In fact, we've got a situation arising tomorrow with the Childcare Funding (Wales) Bill where that's a possibility of solving a problem.

So, I'll start with a question of definitions, if I may, both of codification and even consolidation, because to me, codification means the embodiment in statute of common law that's been created through judicial decisions. But it seems to me to mean something else in this context, a little bit more along the Roman law lines of, quite sensibly, filing law under subject headings, if you like. So, do you agree with Bangor law group that the Bill should—that's not Bangalore, that's Bangor law—that the Bill should contain a definition of codification and consolidation just to avoid the kind of uncertainty that I've already fallen foul of?

I absolutely support the remaking, or the restating as well, of existing law in modern bilingual and accessible form. This does mean restating existing law, interpreted under older legislation of 1978, I think it is, is it? And, of course, it's not the intention of this Bill to affect or undermine anything and the way it's already interpreted. So, how can you reassure us that if we're going to be—excuse me for characterising like this—but if we're going to be cutting and pasting from other laws and putting it into our own law, how can we be sure that the meaning and understanding will not be lost or changed as a result of coming into our bespoke Welsh law, which I welcome? Because words and phrases could have acquired different meanings over time, and if you've got two interpretation Acts sitting side by side, I'm sure it's an issue that you've already identified and thought about, particularly as our new Acts would probably be taking precedence in those circumstances. And then, conversely, if it's not going to be cut and paste, how can we be sure that the original meaning and original interpretation will be successfully recreated in any new Welsh statutes using the new Welsh interpretation Act?

You say in your statement that Part 2 of the Bill is about shortening and simplifying the law, and, of course, I see the argument for that: it promotes accessability, and we should use modern language where it doesn't confuse. I think this is your chance, for example, to clarify the meaning of the word 'may' in modern drafting. You do refer to it in part of the draft, but not this specific problem. But do you also accept that the word 'simplification' has got more than one meaning and that we must be cautious about balancing the easier to understand with the potential problems of lack of precision? How do you expect to manage that?

The Learned Society of Wales in evidence told us that the duty for Welsh Government to keep Welsh law under review is not clearly prescribed in the draft Bill. It doesn't say what Welsh Government must actually do to keep that under review, and it also has a question about what 'codification' means. It says—and I'm quoting here—that it is not and should not be the purpose of legislation to signal good intentions. I would like that statement on T-shirts, posters, mouse mats, screensavers and on the foreheads of your beloved—anywhere, really, that the Cabinet Secretaries in this place might see it, because this is your chance, Counsel General, to improve the quality of our statutes as well as their accessibility. So, will you be using this opportunity to ensure that Welsh Government moves away from a routine choice of Swiss cheese Bills that express policy intention, but require a significant cadre of regulations, subject to much less scrutiny, of course, in order to make them function as legal instruments, and ensure that accessibility includes the concept of clarity about what affected parties are supposed to do in order to comply with various laws? I was very glad, of course, to see the provision on sunset clauses in the draft Bill, which helps accommodate that.

Two more questions, Presiding Officer. Your closing comments on the structure of codes: what exactly did you mean by

'these laws will then need protection from any future political desire to make law that does not fit structurally within the new established codes' and

'we have a collective responsibility to constrain'— and you did say 'constrain'—

'how that is done'?

I appreciate that it's about impact on accessibility, but that really does need further explanation, because no Government should be seeking to constrain the legislature. For me, it's completely foreseeable that statutes we make in the future might cross your taxonomy lines and fit under more than one heading, so I just want confirmation that any opposition amendments brought forward to future Welsh Government Bills will not be rejected on the grounds that they're outside of a particular taxonomy heading.

Finally, any statute is out of date the day it's made—we're all familiar with that—so what are your thoughts on how we need to deal with what used to be the old Noter-up—but I think it's now LexisNexis and Lawtel—updates, for any changes that are made to legislation, even affected by this Bill? How will they be fitted into your series of codes, if that makes sense? Thank you.