Committee on codification: Developments in devolution

In 2018 Lord Lloyd Jones stated that for ‘the first time since the age of the Tudors it has once again become meaningful to speak of Welsh law as a living system of law.’[1] This is thanks to legislation gifting primary law making powers to the Welsh Assembly.[2] While still in the early stages of devolution, this increase in power has created a complex system.

The Constitutional and Legislative Affairs Committee recently held an oral evidence session concerning the Legislation (Wales) Bill.

The Committee met with the chair of the Law Commission, Sir Nicholas Green QC, who noted that the need for accessibility was prominent when considering the difficulties members of the public have when faced with a legal difficulty. Legal aid cuts have resulted in an increase in members of the public acting as litigants in person, and Sir Nicholas had seen this in his career as a judge, commenting that members of the public often do not know how to present themselves in front of a court or tribunal.

Background

A report considering the accessibility of legislation applicable in Wales was published in 2016.[3] The Law Commission identified a range of issues including:

  • Uncertainty as to which body has the power to make law or to exercise legal powers
  • The National Assembly and Westminster have the power to amend legislation relating to devolved matters
  • Westminster publish the amendment and not the amended text
  • The volume of legislation applicable in Wales

The Law Commission highlighted education as an area which embodies the issues facing the accessibility of legislation. This is particularly concerning as the law is of interest to parents, teachers and governors.

Law Commission

Further issues were identified in the devolved areas of local government, environment and waste, town and country planning, and social services.

The Law Commission then identified a range of solutions:

  • Consolidation
  • Codification
  • Digitalisation
  • Streamlining legislation
  • Removing outdated language

These were discussed at the committee meeting where Suzy Davies AM expressed a desire for the people in Wales to engage with the work that the Assembly does. This is difficult where archaic language is used, and it was raised the consolidation and codification could be seen as a questionable choice of words.

Sir Nicholas stated that there was no statutory definition of codification or accessibility and emphasised the danger of being too prescriptive too early as this could restrict the scope of this exercise.

Approach

Carwyn Jones questioned the approach the Committee intends to take, whether codification would be a legislative code or a catalogue the public could use to locate the applicable law. The Commission explained that the former would be adopted, similar to the French Criminal Code. However, the future system in Wales would not be comprehensive, but would be substantial.

While acknowledging that some current Acts would easily correlate to a code, some Acts touch upon a range of legislative fields. This is something the Assembly would have to gain an expertise in over time. Currently there are 16 proposed codes with 64 topics within them. Sir Nicholas labelled this proposal a sophisticated piece of work, and not like anything he had seen in any other jurisdiction.

Brexit

The Committee raised the importance of tackling this issue now in light of the future legislative challenge of Brexit. Sir Nicholas acknowledged the demands of Brexit but expressed his belief that this is not a distraction. The Bill would be an exercise in best practice, and it was explained that the complexity of the statute book will not get any simpler with time. Brexit will require 1,000 pieces of legislation and if this Bill is adopted a mechanism will be in place to deal with this challenge.

The chair of the Law Commission stated that the body was standing ready to work with the Government and the Assembly on this matter.

Footnotes
[1] https://www.supremecourt.uk/docs/speech-180308.pdf accessed 14.01.19
[2] Part 4 of Government of Wales Act 2006
[3] Law Comm No.366: Form and Accessibility of the Law Applicable in Wales


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

Briefing tags , ,