Cynulliad Cenedlaethol Cymru
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National Assembly for Wales
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Y Pwyllgor Materion Cyfansoddiadol a
Deddfwriaethol
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Constitutional and Legislative Affairs
Committee
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Bil deddfwriaeth (Cymru)
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Legislation (Wales) Bill
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CLA(5) LW03
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Ymateb gan Yr Athro Thomas Glyn
Watkin
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Evidence from Professor Thomas Glyn
Watkin
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I am grateful to the Constitutional and Legislative Affairs
Committee for the invitation to make a written submission and
participate in an oral evidence session in relation to this
inquiry. The opinions expressed in this paper are entirely my own
and do not represent the views of any body or institution with
which I am or have been associated.
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The Inquiry’s terms of reference state it will address:
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the general principles of the Legislation (Wales) Bill and
whether there is a need for legislation to deliver the Bill’s
stated policy objectives;
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any potential barriers to the implementation of the provisions and
whether the Bill takes account of them;
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whether there are any unintended consequences arising from the
Bill;
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the financial implications of the Bill (as set out in Part 4 of the
Explanatory Memorandum);
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the appropriateness of the powers in the Bill for Welsh Ministers
to make subordinate legislation (as set out in Part 3 of the
Explanatory Memorandum).
The
General Principles
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The bill seeks to promote the accessibility of Welsh law, as
defined in section 1(2). This it seeks to achieve by placing a duty
upon the Counsel General to keep the accessibility of Welsh law
under review (section 1(1)), and requiring the Welsh Ministers and
the Counsel General to prepare programmes setting out what they
intend to do to improve such accessibility (section 2(1)). Each
programme must include proposals which are intended to contribute
to an ongoing process of consolidating and codifying Welsh law,
maintaining Welsh law in that form and facilitating the use of the
Welsh language (section 2(3)). These purposes build upon
recommendations made by this Assembly Committee in its report
Making Laws in Wales (October 2015) and by the Law
Commission in its report on the Form and Accessibility of the
Law Applicable in Wales (Law Comm. No. 336, June 2016).
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What is envisaged may be achieved is a highly laudable objective.
Citizens of the United Kingdom, including those in Wales, suffer
from having their lives regulated by laws which are not easy to
access. This is, in part, the consequence of how relevant
legislation has been drafted and accumulated. Bills are rightly
drafted to allow those who legislate on behalf of the citizen to
scrutinize legislative proposals prior to deciding whether the
proposals should become law. The structure of bills reflects their
use in that context. They set out the changes which it is proposed
should be made to the law in order to achieve a particular policy
objective. Likewise, if the bill is enacted, the resulting Act or
Statute records the changes to the law which it has been decided
should be made. Neither a bill nor an Act is structured to set out
for the benefit of the citizen what the resulting state of the law
is on a particular topic. Nor does the so-called statute book do
that. The statute book merely records in chronological order the
various changes which have been made to the law over the centuries.
It is not so much that it is not designed to be a statement of the
law, but rather that is not really designed at all. It is just a
chronological collection.
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Since at least the nineteenth century, serious attempts have been
made to try to impose some order upon the accumulated mass of
enactments, by for instance publishing editions, such as The
Statutes Revised, which remove spent or repealed enactments and
edit into the texts later amendments to them. The development of
electronic sources of such texts is the latest most effective
version of that endeavour. They do not however alter the basic
problem which is that the collection remains chronological and is
not designed to make the law – as opposed to individual
pieces of law-making – accessible.
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Over much the same period, attempts have also been made to
restructure the accumulated mass of legislation based on its
subject matter, in works such as Halsbury’s Statutes
and Halsbury’s Statutory Instruments. In addition,
Halsbury’s Laws of England is a more ambitious,
encyclopaedic work which sets out the relevant law on each subject
and not simply legislation. Together, these works regroup the
relevant legislation or law under appropriate subject headings
arranged alphabetically. These works require continual updating as
new laws are made, again a task which can be more effectively
performed in a digital age.
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Neither of these approaches delivers for the benefit of citizens a
text which is an official, accessible statement of what the law is.
In truth, the target audience for these works is mainly the legal
professions, and access to them reflects that fact in terms of
their cost. Their structure has led to the jibe that the English
lawyer’s idea of order is either chronological or
alphabetical, in contrast to the rational order of the law codes of
many other countries. However, even in those countries, the
comprehensive nature of their codes of law is often compromised by
the enactment of what is termed ‘complementary
legislation’, that is free-standing enactments which are not
inserted into the codes themselves. Such enactments, when frequent,
undermine the accessibility which the codes are meant to achieve.
Their existence highlights the importance of a sustained political
will to maintain a codified structure once adopted if accessibility
is to be permanently achieved.
Consolidating and
codifying Welsh law, and maintaining it in that form
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The importance of maintenance is recognized in the Explanatory
Memorandum to the Bill which states that:
only a sustained effort over the long term can solve the problems.
What is required is a permanent change to our law making processes
(¶ 14).
Crucial to the success of
consolidating and codifying the law is that both continue over the
long term and become an accepted part of the culture of law making
in Wales. This means accepting that the law is constantly evolving
and must, even after it has first been consolidated, be revisited
periodically to ensure that it remains well ordered and accessible.
It also means maintaining the overall structure – not the
content, which will always change in accordance with policy and
political wishes – of the statute book. Once the law is
consolidated and codified we should only move away from the new
structure in exceptional circumstances (¶ 31).
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However, the Explanatory Notes which accompany the Bill are less
clear in this regard. They state that:
Codifying the law is intended to bring
order to the statute book. This involves organising and publishing
the law by reference to its content (and not merely when it was
made), and maintaining a system under which that law retains its
structure rather than proliferating (¶ 17),
but then appears to roll back on the broader vision
of the EM :
a Code would not (generally) be one legislative instrument but
rather a collection of enactments under a unifying overarching
title. Those enactments which make up the Code on any particular
subject would be made available together. Similarly these
enactments will remain the means by which the law is formally
articulated. The Code is not intended to be a legal instrument in
its own right but rather a means of collating and publishing the
law more effectively (¶
17).
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The technical document on the Draft
Taxonomy for Codes of Welsh Law repeats the latter two
paragraphs (¶¶ 3 & 4), and the Annexes anticipate the collection of
existing legislative sources under Proposed Codes and Topics. The
approach is not dissimilar to that adopted in constructing the
alphabetical, encyclopaedic works mentioned above (¶¶
5–7), although it is clearly intended that both primary and
secondary legislation should be incorporated within each code,
together with other relevant sources, such as guidance. It will
also be the case that the sources will have been officially
consolidated and will constitute an official statement of the
legislation contained in each code. Nevertheless, if, as is stated,
“The Code is not
intended to be a legal instrument in its own right but rather a
means of collating and publishing the law more effectively
(EN ¶17)”, it is difficult to see how this can effect
“a permanent change to our
law making processes” (EM ¶14).
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If the codes merely collate and publish primary and secondary
legislation which continues to be enacted and made as at present,
the only change to existing law-making processes that may be
required may be the addition of an opportunity for the legislature
to scrutinize how such legislation is being incorporated into the
codes. Without such a stage, the exercise will be entirely the
preserve of the executive and will be conducted, albeit more
thoroughly and more regularly, in much the same way as
legislation.gov.uk is currently revised and updated.
However, unless some rôle is accorded to the legislature in
this process, it is difficult to see how the content of
non-government bills could be fairly accommodated. At the very
least, an expedited legislative process might need to be introduced
to deal with post-enactment revision of the codes. It might also be
asked where the drafters producing those revisions should be
located – in the government, the legislature or at arms
length to both.
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If, on the other hand, the code becomes the principal legal
instrument in its field, the changes required to the existing
law-making processes are likely to be much more extensive. Bills
and draft statutory instruments (other than in exceptional
circumstances – see EM ¶31) could be drafted so as to
amend the text of the code. The legislature could control the
structure of the statute book by ensuring that – other than
in exceptional circumstances – bills and instruments
conformed to the new requirements. Standing Orders and requirements
as to Proper Form might reflect this.
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Questions also arise regarding the amendment of the code by
secondary legislation. Would all such amendments attract the
affirmative resolution procedure, or could some amendments to the
codes still be made by the negative procedure? With the advent of
codes, might the existing procedures themselves need to be
reconsidered and possibly even replaced?
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Greater clarity is needed with regard to these issues. However,
seeking greater clarity regarding the long-term vision should not
hinder the essential first steps which are proposed in this bill.
Almost certainly, the ongoing process of consolidation and
codification will encounter fresh challenges in its path. Given the
relative youth of its devolved legislature and the still manageable
quantity of its statutory output, Wales is well-placed to take
bold, first steps towards codifying its legislation as proposed by
the bill’s provisions.
Potential barriers
to Implementation and Unintended Consequences
Consolidation and the Equal Standing of Welsh
and English Versions
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As stated in the Explanatory Notes,
Section 2(3) also requires each programme to include activities
intended to facilitate use of the Welsh language... A key aspect of
this will be consolidating the law bilingually so that much more of
the law for which the National Assembly and Welsh Government are
responsible is made in Welsh (¶ 20).
Both the
Explanatory Notes and the Draft Taxonomy state that:
Consolidating the law generally involves
bringing all legislation on a particular topic together, better
incorporating amendments made to legislation after it has been
enacted and modernising the language, drafting style and structure.
This involves no or only minor amendments to the substance of the
law consolidated. In Wales consolidation of the law will involve
for the most part re-enacting laws previously made by the UK
Parliament, and doing so bilingually (EN ¶16; DT
¶2).
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There is a clear intention, therefore, in
producing the codes to ‘repatriate’ laws currently to
be found in UK legislation and to express them bilingually in the
resulting codifications. This raises a question concerning the
status of the two language versions in such circumstances. The
Government of Wales Act 2006 provides that “The English and
Welsh texts… [of Assembly Measures, Acts and any subordinate
legislation] are to be treated for all purposes as being of equal
standing” (GoWA 2006, s. 156(1)). Such equal standing,
however, only applies to legislation “which is in both
English and Welsh when it is enacted, or… when it is
made”. Given that, as quoted above, consolidation
“involves no or only minor amendments to the substance of the
law consolidated”, the question arises as to when provisions
which have been consolidated are to be treated as having been
enacted or made. This is particularly important if, as the Law
Commission stated in its report on the Form and
Accessibility of the Law Applicable in Wales:
In order for the equal status of both versions of legislation under
s. 156 of GoWA 2006 to have any meaning, it is necessary for the
interpretation of bilingual legislation to take account of both
language versions. We endorse the approach… [which]
recognizes that the exact meaning to be given to legislation
depends on the meaning of both language texts (¶¶
12.17–12.18).
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It would be convenient and preferable for the consolidated law to
be treated as having been enacted or made when the consolidation
was accomplished, but it could be argued that, if there was no
intention to change the meaning of the provisions when
consolidating, the Welsh version could not therefore be treated as
of equal standing. In passing, one assumes that the English text
would undergo such minor amendment as was appropriate to bring it
into line with the Welsh interpretation provisions.
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If the approach taken to the question of the relevance of the Welsh
version to the interpretation of consolidated legislation was to
deny its relevance, then there would be portions of a Code in which
the two language versions were of equal standing and other portions
in which they were not. This would be a potential pitfall when
using the Welsh version and could discourage its use.
Section 8 and
Grammatical Variations
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Section 8 of the Bill introduces a provision of a kind which is not
in the Interpretation Act 1978, but can be found, as noted in Annex
A to the Explanatory Memorandum, in the interpretation provisions
of other jurisdictions, citing Canada and Hong Kong as
examples.
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The Explanatory Notes state that the proposed section:
makes clear that, where an
Assembly Act or Welsh subordinate instrument defines a word or
expression, parts of speech relating to the word or expression also
carry the definition. For example, if the word
“walk” is defined, then the parts of speech
relating to “walk”, such as
“walking” and “walker”, are
to be interpreted in the light of that definition (¶
59).
21.
They go on to say
that:
It often goes without saying
that a definition applies in these circumstances. In some cases
though this needs to be put beyond doubt…
Section 8 of
the Bill makes general provision about the application of
definitions, to avoid ambiguity and remove the need to make
separate provision in individual Acts and instruments
(¶ 60).
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In his Gray Lectures, delivered at the University of Cambridge in
1966, the late Professor David Daube drew attention to the fact
that agent nouns in particular, but also on occasion action nouns,
have a narrower meaning than the verbs which correspond to them.
Thus, while a baker undoubtedly bakes, not everyone who
bakes is a baker (David Daube, Roman Law: Linguistic,
Social and Philosophical Aspects, Edinburgh, 1969,
pp.1–63, example cited at p.2). Agent nouns and action nouns
are often more than a modification or a grammatical form of a verb;
they are frequently words with a different, more restricted even if
connected, meaning.
23. Care needs to be taken regarding this
provision, and it should not be assumed that any correspondence,
for example, of verb and agent noun in one language will
necessarily be replicated in another. As this provision is
disapplied where ‘the context requires otherwise’, the
problem may be resolved by interpretation, but it would be better
avoided rather than resolved.
24. The usefulness of the provision with
regard to dealing with mutational and other like changes in Welsh
is not questioned.
Choice of Proposed Codes and
Topics
25. Somewhat inevitably, the proposed codes
and topics anticipated in the Draft Taxonomy reflect the subjects
in relation to which the Assembly enjoyed legislative competence
under the previous devolution settlements. While it is unavoidable
that Welsh law to date will relate to those fields and headings,
there is perhaps a danger that their conversion into Codes could,
almost inadvertently, confine Welsh law-making within its former
limits. To borrow and adapt F.W. Maitland’s famous aphorism
(Equity, p. 296), having buried the conferred powers model,
we should not let it rule us from its grave.