Form and Accessibility of the Law Applicable in Wales Consultation Analysis
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Form and Accessibility of the Law Applicable in Wales Consultation Analysis LCCP223 (Analysis) FORM AND ACCESSIBILITY OF LAW APPLICABLE IN WALES: ANALYSIS OF CONSULTATION RESPONSES SUMMARY 1.1 This document analyses the responses received to the Law Commission’s consultation paper, Form and Accessibility of the Law Applicable in Wales. This document will provide a summary of the views of consultees in relation to the 73 consultation questions asked in the consultation paper. 1.2 Alongside the consultation paper we also produced a questionnaire to support our impact assessment. The questionnaire aimed to gather evidence on the costs and benefits of improving the accessibility of the law in Wales. The questionnaire ascertained evidence on the savings of having more accessible law in monetary terms and the benefits of some of the solutions explored in the consultation paper. Questionnaire responses were anonymised. THE CONSULTATION PROCESS 1.3 The consultation paper was published on 9 July 2015. The consultation period ran until 9 October 2015 and was officially closed at the Legal Wales Conference 2015, at which the Law Commission presented. The deadline was extended to the end of October 2015 to take account of the fact that part of the consultation period ran over the summer. 1.4 To launch our consultation period we held an advisory group meeting on 23 July 2015 in the Pierhead building in Cardiff. The advisory group represented a broad range of stakeholders including the Welsh Government, local barristers, legal academics, the Welsh Language Commissioner and pro bono service providers, for example. The meeting was used to present the three Parts of the paper in turn, opening the floor to questions and comments after presenting each Part. 1.5 During our consultation period we also held a regional meeting with local government lawyers in North Wales. In addition, we attended a Lawyers in Local Government Wales Branch meeting in Llandrindod Wells. We were also able to hold two focus group discussions at Aberystwyth University in which we received views from academics, students, local practitioners, local government and the third sector. A focus group was arranged with the Wales Council for Voluntary Action’s Alliance for Alliance group which included representatives from Royal Society for the Protection of Birds, Citizens Advice Wales and Welsh Women’s Aid, for example. 1.6 We also attended two conferences (‘Administrative Justice in Wales and Comparative Perspectives’ at Bangor University and Legal Wales 2015) and the launch of the Law Wales website at the National Assembly for Wales. 1.7 In addition, we undertook extensive consultation on a one-to-one basis with a wide range of stakeholders. Stakeholders included non-governmental organisations, public bodies, the judiciary and practitioners, for example. 1 1.8 The views recorded in the above meetings, focus groups and conferences are represented in the consultation analysis, however views were recorded under Chatham House Rules. Stakeholders will therefore be identified as a category of stakeholder rather than as individuals. For example, any views recorded in a consultation meeting with Citizens Advice Wales will be recorded as the views of a third sector organisation. 1.9 Finally, we received 45 written consultation responses. Responses were received from individuals, organisations, public bodies and commercial entities, for example. Organisations included the Care Council for Wales, National Farmers Union, Universities Wales and associations such as the Association of London Welsh Lawyers. A full list of consultees will be an appendix to this consultation analysis. 1.10 This project is commissioned by Welsh Government and therefore a written consultation response was required by the Welsh Government. 2 CHAPTER 1 INTRODUCTION 1.11 Chapter 1 asked only one consultation question, which requested information on the cost and benefits of the proposals made in the consultation paper. Consultation analysis of this chapter will also include general introductory remarks made by consultees. General comments 1.12 The Lord Chief Justice of England and Wales stated: This is a real opportunity for Wales to set the bar high and enable the advantages of being a new legislature to be realised. The volume of legislative output, although increasing, is still currently small enough to allow for a different approach to be taken, whether that be codification or at the very least, consolidation of the law. As Wales moves into the next phase of devolution, it is fundamental that the issues are dealt with now and that the future standing of Welsh law is secured. 1.13 Many consultees made general, introductory comments on the importance of law being accessible. Dame Rosemary Butler AM (Presiding Officer of the National Assembly for Wales) commented: I entirely agree with the proposition that the accessibility of the law is a pillar of democracy. This is a natural extension of the efforts I have been making throughout my tenure as Presiding Officer to open up the entire democratic process to the people of Wales. I also agree that form and presentation can hinder or aid accessibility. I believe it is urgent that we in Wales move to make up-to-date, bilingual, versions of the law applicable in Wales, in all devolved fields, available to the citizen free of charge and in one place. I applaud the efforts that the Counsel General to the Welsh Government is already making in this regard. 1.14 The Welsh Government commented: Welsh Government is keen to grasp the opportunity now presented to provide once again a different and better way of doing things in and for Wales, and in this case in a way which has important cross- cutting effects upon the effectiveness and efficiency of the policy decisions made under devolution. The law, and the clarity and accessibility of the law, is the essential tool for converting the policy aspirations of Welsh Government and the National Assembly for Wales into real benefit to the people of Wales. 1.15 The Association of Judges of Wales highlighted that the issues explored in the consultation paper are not relevant to Wales only: 3 It is clear to us that there is little appreciation in England of the impact of Welsh devolution and the powers of the National Assembly for Wales to change the law as it applies in Wales. Such is unsurprising when law changes are around the margins. They begin to gain more significance and importance when law reform in Wales is introduced on subject matter of core importance to the population generally and we now see that point to have arrived. 1.16 The National Trust explored how the position in Wales affects the position in England: An issue which faces the National Trust legal team but which is not covered by the consultation questions is the difficulty identifying where there are differences between English and Welsh law. (This issue is picked up in the completed questionnaires accompanying this response). Differences between English and Welsh laws occur when the law in either country is changed. Keeping track of major changes in the law of Wales is easy (for example we are closely monitoring the Renting Homes (Wales) Bill and actively engaging with the Welsh Government) but the implementation of more minor changes and keeping the legal team up to date is more difficult. This applies to changes to the law in Wales and to changes in England, both create divergence and we have to track both to see when and where divergence occurs. Quite frequently the law in England changes and the law in Wales remains the same. For example, the recent Small Business, Enterprise and Employment Act 2015 made some changes to the operation of the security of tenure provisions of the Landlord and Tenant Act 1954 in relation to home workers, it was not straightforward to work out whether these changes apply only to England or to England and Wales. 1.17 Consultees made a variety of comments on why the law must be accessible and what it means to have accessible law. Consultees also offered general comment on why the law applicable in Wales is not accessible. Much of this comment focused on the devolution settlement, including its incremental evolution and consequences. For example, the Association of London Welsh Lawyers stated: Legal practitioners have to grapple with the sheer volume of primary and secondary legislation and the frequency with which it is amended. In Wales, these difficulties have been compounded by reason of the incremental “evolution of devolution”. For example, functions under a large number of Acts of Parliament have been transferred to Welsh Ministers, but this is not apparent on the face of the Acts of Parliament in question. Further complexity is introduced by the divergence of the law applicable in Wales from that applicable in England; a consequence of a fundamental difference in the political make-up of the two legislatures. 4 This divergence in the applicable laws will inevitably become more pronounced over time. Now is the time to seize the opportunity to ensure that the form of Welsh law is expressed in a clear and coherent way, and to ensure that there is proper access to the law that is applicable in Wales. 1.18 Two consultees also suggested that the law could be made more accessible to the user if Assembly Measures were renamed Assembly Acts. Measures and Acts have the same status but they appear as two different categories of legislation which does not aid clarity. 1.19 Similar comments about inaccessible law were broadly echoed in consultation meetings across the length and breadth of Wales. It was these concerns that were shared by the Law Commission’s Welsh Advisory Committee, where the idea for the project originated.