Wales: devolution solution

The Law Commission of England and Wales is carrying out an advisory project which will suggest ways to make the law applicable in Wales more accessible to everyone who needs to use it.

Across England and Wales it is difficult for professionals and lay people alike to find out what the law is. This can be attributed to the sheer volume of legislation, the rate at which legislation is amended, the use of subordinate legislation, the way in which legislation is presented and the limited availability of up-to-date legislation on open access websites.

The position has been complicated in Wales in two ways. First, the incremental development of devolution has led to a variety of forms of devolved legislation and a shifting picture of where legal powers lie. Many powers and functions have moved from the secretary of state, first to the National Assembly for Wales (initially an executive body) and later to the Welsh ministers and sometimes other statutory bodies. This creates a complex trail of transfer of functions legislation for the reader to follow. Often there is no up-to-date source consolidating the law as it currently stands.

Second, in areas where the Welsh Assembly now has primary legislative powers, a Westminster statute may be amended by the assembly in relation to Wales and by parliament in relation to England. The result is often unclear and a potential source of confusion.

In practice, anyone seeking to understand what the law is in Wales needs a grasp of the development of devolution and an ability to navigate legislation effectively, or at least access to an updated commercial legal database. These barriers to accessibility are problematic in principle – it is important that people are able to discover and understand the law under which they live – and may contribute to increased costs and inefficiencies. These in turn may affect the decisions that individuals or businesses make.

The National Assembly for Wales is a relatively young legislature, largely free from the UK parliament’s historical baggage. There is a real opportunity for Wales to lead the way in developing innovative approaches to legislation which will improve access to the law for all.

Our project in part springs from the longstanding concerns of officials and politicians in Cardiff. It was formally proposed by the Law Commission’s Welsh Advisory Committee as part of our Twelfth Programme of Law Reform. On 9 July we published a consultation paper setting out the problems as we understood them and seeking views on possible solutions.

Two approaches we consider are consolidation and codification, either of which might produce coherent and clear legislation for Wales. Traditionally, consolidation replaces existing statutory provisions, found in a complex plethora of statutes enacted over many years, with a single act or a series of related acts.

Consolidation is intended to preserve the effect of the current law. It is labour-intensive; a highly trained legislative drafter may spend months or years consolidating provisions, some of which are not worth preserving. We therefore also consider consolidation together with reform and also a form of codification. Codification would mean bringing together all of the legislation on a particular subject (for example planning or education) into one instrument or series of instruments, with the code becoming the sole piece of primary legislation on the topic and any further changes being made by way of rewriting the code.

We ask for views on whether the integrity of such a process could usefully be overseen by a new ‘code office’ which would also have authority to make limited technical changes to codes to ensure that they remained modern and coherent. Unlike consolidation, this would not simply improve the accessibility of the statute book for the present; it would aim to ensure that the legislation continued to be accessible.

In addition, we consider whether accessibility could be improved by publicly available legal databases of the sort recently launched in Wales. We look at the services available and canvass suggestions as to what such a website should include, as well as looking at the need for more textbooks and guidance.

Any recommendations we make must be cost-effective. We are asking consultees to assist us in estimating the costs and benefits of options. We would welcome views on the costs in time and money that the current state of the legislation is causing. We would particularly value information on experiences of having to work out what law applies in Wales, dealing with the complexities of the current situation and using the available resources, or of decisions or outcomes which have been affected by the law’s inaccessibility.

Our consultation will close on 9 October, marked by a final discussion at the 2015 Legal Wales Conference. We will then work on our report, to be presented to the Welsh government in early 2016.

The consultation paper and summary, together with information about responding, can be found in English and Welsh on the Law Commission website. We want to consult as widely as possible, meeting people across Wales. Please send a response or contact us if you would like to contribute. We want to hear your views and ideas about the shape of the law in Wales.

The Rt Hon Lord Justice Lloyd Jones has returned to the Court of Appeal following the completion of his term as chairman of the Law Commission. The new chairman is the Rt Hon Lord Justice (Sir David) Bean. Nicholas Paines QC now has responsibility for this project within the Law Commission