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Taming the Dragon: Keeping Welsh Law Accessible in the Devolution Age

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About The Author

Keir Baker (Editor in Chief)

Keir is a recent law graduate from Selwyn College, Cambridge University and a Future Trainee Solicitor at Morgan Lewis & Bockius LLP. His main areas of interest are Employment and Discrimination law. Outside the realm of law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

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If Wales is to succeed in the changed circumstances of devolution, the law of Wales must be made readily accessible to its subjects.

Lord Lloyd-Jones

Established in 1999, the Welsh Assembly is the democratically elected body of Wales. When it was created by the Government of Wales Act 1998, the Welsh Assembly’s powers were limited to making secondary legislation in areas that had been specified by the Westminster Parliament. For example, Schedule 5 of the Government of Wales Act 2006 set out the 20 policy areas (ranging from agriculture and fisheries to education and tourism) on which the Welsh Assembly could legislate.

However, this was subject to a major change when the Wales Act 2017 was given Royal Assent on 31 January 2017. This introduced a new model of devolution more akin to the system in Scotland, whereby the Welsh Assembly is able to legislate on any area that the UK Parliament has not reserved for itself. This permits the Welsh Assembly to pass primary legislation and expands its remit to cover new areas like speed limits, fracking and taxation. It also gives the Welsh Assembly the power to change its name, which it is expected to exercise to become the ‘Welsh Parliament’.

The Westminster Parliament’s granting of a greater range of powers to the Welsh Assembly is certainly welcome: it recognises that Wales has different needs to other areas of the UK, which should be reflected in a stronger regional government. However, this shift in legislative competence has not been without its practical difficulties: as this article examines, confusion and accessibility issues have arisen as a result of the ever-increasing legal divergence between England and Wales. These need to be resolved. 

The Current Problems: Complexity and Inaccessibility

Despite England and Wales being one of three jurisdictions that make up the UK, the increasing competence of the Welsh Assembly has created a unique body of Welsh law that is distinct from the law in England across a wide range of policy areas. In 2014, the House of Lords Select Committee on the Constitution recognised this divergence, concluding that:

The reality of a growing body of distinct Welsh law should… be reflected in the operation of a single England and Wales jurisdiction. 

The present state of affairs is creating an ever-worsening headache for lawyers in both England and Wales when trying to identify – and then apply – the rules pertaining to legal problems before them. The precise causes and symptoms of the present struggle were forensically examined by Supreme Court judge Lord Lloyd-Jones in a speech to the Association of London Welsh Lawyers on 8 March 2018.

Lord Lloyd-Jones described the ‘complexity and inaccessibility of the law’ as a ‘huge problem’ that potentially breaches the fundamental rule of law principle of legal clarity and accessibility, upon which the European Court of Human Rights placed great emphasis in The Sunday Times v UK [1979]. He identified four potential causes of the issue.

Firstly, Lord Lloyd-Jones observed that ‘the way in which devolution has developed’ has contributed to the impenetrability of legislation. The piecemeal and gradual basis by which powers have been transferred under successive devolution settlements ‘makes it unclear which body has the power to make law or to exercise legal powers’.

Secondly, Lord Lloyd-Jones identified the potential impasse created by the fact that primary legislation existing in the areas over which the Welsh Assembly has legislative power may still be amended by the Westminster Parliament. In that respect, when both legislative bodies seek to introduce new provisions to legislation, the statute can be rendered labyrinthine due to the different sections and sub-sections that are created as a result. As an example, Lord Lloyd-Jones pointed towards Section 569 of the Education Act 1996: an untangling of its nine different sub-sections shows that four – though the effect of one remains uncertain – apply to both England and Wales, two apply only in England and two apply solely in Wales.

The third ‘source of difficulty’ acknowledged by Lord Lloyd-Jones is the traditional style of amendment employed by the drafters of UK legislation in Westminster, whereby the amendment is published without the amended text being included alongside it. Thus, Section 25(2) of the Wales Act 2014 – which permits the Welsh Government to refer a law reform project to the Law Commission – states the Law Commissions Act 1965 is to be amended as follows:

In Section 3(1) (functions of the Commissions), after paragraph (e) insert – “(ea) in the case of the Law Commission, to provide advice and information to the Welsh Ministers”.

Clearly, as Lord Lloyd-Jones bemoaned, this provision is ‘meaningless’ when read in isolation. Any lawyer seeking to work out its effect must cross-reference it with the Law Commissions Act 1965 to have an idea of what it means. In simple cases, this is an inconvenience; in instances where a statutory provision has been amended on multiple occasions, however, this results in what Lord Lloyd-Jones described as ‘an impenetrable mess’.

Finally, Lord Lloyd-Jones suggested that ‘perhaps the main cause’ of the problems facing Welsh law is the ‘sheer volume of legislation’ from both the UK Parliament and Welsh Assembly that has been ‘scattered all over the statute book’. Because of this, in many areas, the law has been left short of a tangled web. Indeed, as the Law Commission identified in its widely cited 2016 report on Welsh law, parents, teachers and lawyers who want to understand the law relating to education in Wales must deal with the fact that:

Depending on how widely “education law” is defined, education law in Wales is contained in between 17 and 40 Acts of Parliament, seven Measures and six Acts of the National Assembly and hundreds of statutory instruments.

Options for Resolution

A Separate Jurisdiction?

Passed during the reign of Henry VIII, the Laws in Wales Act 1542 consolidated the administration of all the Welsh territories and incorporated them fully into the legal system of the Kingdom of England. Since then, because the two form the constitutional successor to the former Kingdom of England, England and Wales has been treated as a single unit. This has remained the state of affairs for nearly 600 years.

However, some Welsh nationalists have made a radical proposal: the adoption of a reserved powers model of devolution in Wales should be accompanied by the creation of a discrete jurisdiction. Speaking to The Law Society Gazette, barrister David Hughes advocates this approach using arguments based on access to justice and alleged economic deficit between England and Wales. In his view, a legally independent Wales could implement ‘imaginative things’ to enhance access, such as a contingency legal aid fund. Furthermore, he laments that legal fees are ‘repatriated’ from Wales to England-based firms, suggesting that:

SMEs in Wales are subsidising multimillion-pound litigation between oligarchs in London. That does nothing for the community in Wales – the fees are not coming back.

This is certainly a controversial proposal. In July 2016, a Plaid Cymru proposal for a separate legal jurisdiction was defeated by a 229 majority in the House of Commons, while a survey found two-thirds of Welsh lawyers did not want a separate jurisdiction. Some fear that it would create an additional barrier to access to justice, while others express concern about whether they would lose out on being able to handle cases from England, which often comprise the majority of their business.

As for its potential to resolve the problem of inaccessibility and complexity, it seems unlikely that a separate jurisdiction would aid matters. In fact, it is arguable that this proposal would enhance the problem. For one thing, it might precipitate a constitutional crisis if the new Welsh jurisdiction, in areas in which power has been devolved, attempted to retain elements of EU law contrary to whatever Brexit deal is reached by the Westminster Parliament.

Furthermore, trying to separate English and Welsh law would be a monumental task. Indeed, the sheer scale of the difficulties this would create are reminiscent of the problems currently dominating the headlines, as the UK government tries to ensure a smooth transition out of the EU after Brexit. Though an equivalent of the Great Repeal Bill might prevent a legal black hole, it is clear that engaging in the task of working out which bits of Welsh law came from the UK Parliament would be a recipe for controversy, as well as blood, sweat and tears.

Consolidation

Consolidation is the process of drawing together different pieces of legislation in an area and passing a further piece of legislation that takes the favoured provisions from each and places them into one single (usually shorter) statute. It may, at the same time, also involve minor amendments to the law and updating the language of statutes to make them more intelligible. It may even involve the creation of new law, where minor updates change the way in which a word or phrase is interpreted, though this is rare.

The task of consolidation is undertaken by the Law Commission with the aim of making the law clearer and more accessible in a way which benefits lawyers, legislators and citizens alike. Two well-known examples of consolidation include the Sale of Goods Act 1979, which consolidated the Sale of Goods Act 1893 and its vast array of amendments, and the Companies Act 2006 (CA 2006), which provides a comprehensive source of company law for the UK. Though some have criticised its length, it is generally accepted that the consolidation heralded by the CA 2006 – by removing the need to have regard to several different statutes – was welcome.

Some have suggested that the problem faced by Welsh lawyers could be resolved by a sustained programme of consolidation: in its November 2017 report, the Law Commission advocated doing so in relation to Welsh planning law. Furthermore, reflecting the rationale behind consolidation, the Welsh Assembly has implemented policies that ensure any new amendments to legislation are made in a readily comprehensible and complete form, with the exact position in Welsh law clearly stated for ease of access.

Lord Lloyd-Jones – while welcoming these developments as ‘a useful start’ that ‘could gradually improve the quality of the statute book’ – argued that consolidation and the Welsh Assembly’s policies are insufficient given the nature of the problem. For one thing, he pointed out that the policies could only make a difference in those policy areas within which legislation is passed. As a result, the comprehensive overhaul that is required would be but ‘a distant possibility’.

Indeed, he observed that some recent consolidations undertaken by the Law Commission – which were nowhere near the scale of Welsh law – had taken two or three years to complete. Furthermore, he noted that ‘there is little point in starting a consolidation unless the underlying law is likely to remain stable’ during the project’s period; attempting to consolidate all of Welsh law, invariably in a state of flux, would be an impossible task. As a result, Lord Lloyd-Jones was clear that consolidation was not the sole answer:

To produce a consolidated Welsh statute book would be an undertaking of massive proportions which… would be likely to take a generation to accomplish. It would require huge resources both in financial terms and in terms of the required number of skilled legislative counsel… It would also require to be a high priority within the Welsh Government [who] having only comparatively recently acquired direct primary legislative powers [will instead] want to concentrate on fashioning new laws for Wales and achieving practical reforms in the devolved areas. Consolidation of the back catalogue of laws is, understandably, not a high priority.

Codification – The Chosen Approach

Codification is the process of collecting and restating the law – from all its sources - into a comprehensive and detailed legal code. The final document may be a non-binding document that is used for referential purposes only, or a binding Act of Parliament.

The process of codification typically operates alongside consolidation, but the two are distinct. Consolidation involves condensing a series of statutes in a single statute; codification is a broader exercise, whereby non-statutory sources of law (primarily precedents from case law that interpret those statutes) are also included. In this respect, a document created for the purposes of codification can be considered a more definitive and accurate statement of the law than a document created for the purposes of consolidation.

In the context of Welsh law, such a course of action has been advocated by Lord Thomas CJ in October 2015, proposed by the Law Commission, and was the preferred approach of Lord Lloyd Jones: all three suggested that the Welsh Assembly should enshrine all the law into a single Act of Assembly for each distinct area of the law. These Acts of Assembly would operate as Codes that authoritatively stand as the only primary legislation on those subjects. They would not, however, be inflexible, with Lord Lloyd-Jones explaining that:

The codes that are created would not be set in stone: any amendment would be by amendment of the code which would remain an up-to-date statement of the legislation applicable to the particular field.

Lord Lloyd-Jones’ call for codification was not a novel idea: a pilot that began in December 2016 was seen as a precursor to a proper programme of codification, whereby existing laws in areas devolved to Wales – like education, tax, planning and housing – would be brought together and set out as distinct Welsh codes of law. Once codified, all of the law, from Assembly Acts to guidance, would, for the first time, be published together and available in one place.

The apparent success of the pilot has triggered more recent developments: on 20 March 2018, Counsel General for Wales, Jeremy Miles, opened a 12-week consultation on the draft Legislation (Wales) Bill (the Bill) that – following the suggestions of the Law Commission and Lord Lloyd Jones – would organise Welsh law into comprehensive codes organised by subject area, as well as imposing statutory obligations on ministers to make laws more accessible.

Analysis of the Proposed Codification

If the proposals contained within the Bill are subsequently implemented, Wales would become the first part of the UK to have a codified corpus of law. This would be a major change that could provide benefits to Wales that spread further than simply improving the clarity of its law. For one thing, it would enhance the country’s access to justice – where citizens have to seek out, and investigate the contents of, potentially numerous sources of law, it is harder for them to rely upon it.

Furthermore, codification would provide the opportunity to have legal provisions translated into Welsh. These legal provisions, that would otherwise only existed in English, would help further develop the Welsh language as the language of the law. This would be welcome: as Dawn Foster has explained, the cultural significance of increasing the use of the Welsh language cannot be underestimated.

The increase in certainty and clarity of the law through codification would also provide economic benefit to Wales. Nations that lack commercial certainty – for example, where parties to a contract are left unsure of their rights and obligations – struggle to attract investment. Therefore, a clear and certain set of laws would be welcomed by businesses considering carrying out operations in Wales. As Counsel General for Wales, Jeremy Miles, argued when launching the Bill:

[A] clear, certain and accessible statute book is an economic asset and gives those who wish to do business in Wales a more stable and settled legal framework.

Nonetheless, concerns can be raised about the appropriateness of the proposed programme of codification. For example, care would need to be taken to ensure that any Code produced does not gain a status of inalienability akin to a written constitution. This might make it harder to make amendments to the law, in a way that would undermine the law’s flexibility.

Most significantly, Lord Lloyd-Jones’ dismissal of the idea of wholesale consolidation as ‘an undertaking of massive proportions’ could equally be applied to codification. In the age of legal and constitutional uncertainty caused by Brexit, attempting to crystallise law that may be subject to significant changes is a marathon task likely to take many years to complete.

Nevertheless, it is important that lawmakers are not daunted by the potential scale of the task. Indeed, even if wholesale codification seems infeasible, it is undeniable that in certain areas – like planning, education and social services, where the law’s regular and/or significant impact on lay people means legal clarity is of the utmost importance – codification would be welcome. As Lord Lloyd-Jones explained, at this stage, it would be acceptable, and even sensible, to prioritise:

[P]rompt action focused on specific areas [that] could confer real benefits within a relatively short term.

Conclusion

The benefits of untangling a mass of different statutory provisions into a single code, which would form the sole point of reference for practitioners, judges and the general population, is intuitively attractive. Making the law clearer and more accessible for the general public can only ever be considered a good thing. Indeed, there are strong arguments in favour of codifying areas of English law: Sir Brian Leveson, President of the Queen’s Bench Division, has expressed concern about ‘the complexity and confusing nature’ of the law on sentencing, while Irwin LJ in a speech made in April 2018 rightly labelled immigration law ‘something of a disgrace’.

In the context of Welsh law, the arguments in favour of doing so – even on a small scale for certain key areas like education, planning and social services – outweigh the arguments against. Certainly, the new model of devolution introduced by the Wales Act 2017 is likely to increase the current struggle caused by the divergence, and it is hard to imagine that Welsh lawyers would be opposed to their lives being made easier.

It is therefore hoped that the consultation opened on 20 March 2018 by Jeremy Miles will result in the endorsement of the proposal contained in the Bill. And, if this is the case, it is desirable: there is no better time to enhance access to justice and commercial certainty than the present, particularly when – as Lord Lloyd-Jones warned – the position ‘remains remediable’.

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Tagged: Administrative Law, Brexit, Constitution, Housing Law, Immigration, Public Law, Supreme Court

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