FormForm and andAccessibility Accessibility of the of Lawthe LawApplicable Applicable in Walesin Wales Law ComLaw No Com 366 No 366 The Law Commission (LAW COM No 366) FORM AND ACCESSIBILITY OF THE LAW APPLICABLE IN WALES Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965 Ordered by the House of Commons to be printed on 13 October 2016 HC 469–I Two volumes not to be sold separately © Crown copyright 2016 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open- government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at www.gov.uk/government/publications Print ISBN 9781474137775 Web ISBN 9781474137782 ID 28061633 06/16 57148 Printed on paper containing 75% recycled fibre content minimum Printed in the UK by the Williams Lea Group on behalf of the Controller of Her Majesty’s Stationery Office THE LAW COMMISSION The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Right Honourable Lord Justice Bean, Chairman Professor Nick Hopkins Stephen Lewis Professor David Ormerod QC Nicholas Paines QC The Chief Executive of the Law Commission is Phil Golding. The Law Commission is located at 1st Floor, Tower, 52 Queen Anne’s Gate, London SW1H 9AG. The terms of this report were agreed on 15 June 2016. The text of this report is available on the Law Commission’s website at http://www.lawcom.gov.uk/project/the-form-and-accessibility-of-the-law-applicable- to-wales/. iii THE LAW COMMISSION FORM AND ACCESSIBILITY OF THE LAW APPLICABLE IN WALES CONTENTS Paragraph Page Chapter 1: Introduction Introduction 1.1 1 This project 1.5 2 The context of the project 1.12 3 Consultation 1.33 8 The Constitutional and Legislative Affairs Committee Inquiry 1.37 9 The scope of this report 1.40 10 The cost of inaccessibility 1.50 11 The structure of this report 1.59 13 Chapter 2: Consolidation and codification Introduction 2.1 14 Consolidation and codification 2.6 15 Chapter 3: Delivering consolidation, codification and law reform: procedures in the National Assembly Introduction 3.1 29 Legislative procedures 3.5 29 A National Assembly procedure for consolidation and 3.35 36 codification “Non-controversial” Law Commission law reform Bills 3.66 41 iv Introducing the procedures 3.68 42 Chapter 4: Maintaining codes Introduction 4.1 44 Distinguishing codes from Acts 4.3 44 A discipline to preserve codes 4.26 49 Chapter 5: Consolidating, codifying and amending secondary legislation 5.1 57 Introduction Improving the presentation of secondary legislation 5.7 58 Chapter 6: A codification programme and a Code Office A codification programme 6.1 60 A Code Office 6.26 64 Chapter 7: Case studies Introduction 7.1 70 Case study 1: Education 7.2 70 Case study 2: Social care 7.9 71 Case study 3: Waste and the environment 7.16 72 Case study 4: Town and country planning 7.22 73 Case study 5: Local government 7.31 75 Other areas of law suggested for consolidation or codification 7.37 76 Conclusion 7.46 78 Chapter 8: Legislative standards Introduction 8.1 79 v Legislation committees in New Zealand 8.4 79 Legislative standards 8.12 81 A legislation committee for Wales? 8.34 85 Legislative impact assessments 8.64 91 Keeling schedules 8.71 93 Explanatory Memoranda 8.91 97 Explanatory notes 8.100 99 Chapter 9: Drafting good legislation Introduction 9.1 104 Drafting legislation 9.3 104 Chapter 10: Bilingual legislation Introduction 10.1 113 Welsh legal terminology 10.8 114 An Interpretation Act for Wales? 10.44 122 Chapter 11: Bilingual drafting Introduction 11.1 127 Institutional Arrangements for drafting legislation 11.8 128 The process of drafting bilingual legislation 11.13 129 Additional support for drafting legislation 11.39 135 Chapter 12: The interpretation of bilingual legislation Introduction 12.1 139 The approach to the interpretation of bilingual legislation in 12.2 139 English and Welsh vi Chapter 13: Official publication of legislation Introduction 13.1 151 Responsibility for publishing legislation 13.6 151 Accessing Welsh language legislation online 13.38 157 Displaying the territorial application of legislation 13.50 160 Presentation of explanatory notes 13.66 163 Open source editing 13.71 164 Chapter 14: A legal website for Wales Introduction 14.1 166 Current services in Wales 14.2 166 A separate legislation database for Wales? 14.4 166 Search engine optimisation 14.10 167 Accessing legislation by subject matter 14.18 169 Publishing official guidance 14.36 172 Commentary – explaining the law 14.45 174 Chapter 15: Legal education and textbooks Legal education 15.1 176 Textbooks on the law applicable in Wales 15.17 179 Chapter 16: Recommendations Recommendations 16.1 183 vii viii THE LAW COMMISSION FORM AND ACCESSIBILITY OF THE LAW APPLICABLE IN WALES To the Right Honourable Michael Gove MP, Lord Chancellor and Secretary of State for Justice CHAPTER 1 INTRODUCTION INTRODUCTION 1.1 Wales has a distinguished history of promoting accessible law. As the preamble to the Book of Iorwerth from 1240 notes, the 10th century laws of Hywel Dda involved a codification of the law and the ordering of it into published books: And by the common counsel and agreement of the wise men who came there they examined the old laws, and some of them they allowed to continue, others they amended, others they wholly deleted, and others they laid down anew … 1.2 The Welsh Government’s response to our consultation paper succinctly summarised the current challenges to accessibility of the law in Wales: For Welsh laws to be accessible it is essential that they are intelligible, clear and predictable in their effect. They must also be easily available. At least three factors militate against this aim. The first is the volume of legislation with its plethora of interconnecting and cross-referenced provisions, which at the moment create something of a patchwork of law. The second is the process of devolution itself, which can make legislation within the devolved areas more complex than would otherwise be the case. The third is the extent to which legislation in its updated form, in other words incorporating amendments made in new legislation to existing legislation, is freely available to the public and available in both of our official languages. 1.3 As Professor Thomas Watkin pointed out in his consultation response, the needs of three readerships should be borne in mind when we consider how to address both the form and the accessibility of legislation. Professor Watkin listed them as follows: Members of the legislature – who need to have a text before them which allows them to consider and decide upon the desirability of making changes to the law to give effect to policies with which they may or may not agree; 1 Legal professionals – who will need to know what changes to the law (as opposed to legislation) have been made, but may be taken to have known the law prior to the changes being made and the effect of those changes upon it; Citizens subject to the law – who will at any time following the change being made need to know, perhaps for the first time, what the law on a particular topic is, may not be able to afford the services of legal professionals, and who will have no interest in knowing what the law was before the change and what changes were made, only what the law which affects them now is. 1.4 Professor Watkin went on to say that no one form of legislation could be expected to meet the needs of all of these people, but that their distinct needs should be “recognised and addressed, and the process of lawmaking, recording and publishing (in the broadest sense of rendering the law accessible) adapted to meet them.” We hope that the discussion and recommendations made in this report will be a step on the way to achieving this. THIS PROJECT 1.5 This project was proposed to us by the Welsh Government as well as the Law Commission’s Welsh Advisory Committee. The Welsh Advisory Committee was established in 2013 to advise the Law Commission on the exercise of our statutory functions in relation to Wales, to help us identify the law reform needs of Wales and to identify and take into account specific Welsh issues in all of our law reform projects. 1.6 The project is part of the Law Commission’s Twelfth Programme of Law Reform. Our Twelfth Programme includes two projects reviewing the law applicable in Wales; the other deals with the simplification of planning law. In that project, which is currently at its scoping stage, we propose to make recommendations for the preparation of an initial piece of codified planning legislation for Wales, in accordance with the recommendations in this report. The project is described in chapter 7 and in the scoping paper that we are publishing contemporaneously with this report.1 The development of our thinking in relation to that project has assisted the development of our thinking in this project. 1.7 In our consultation paper on the form and accessibility of the law applicable in Wales, published in July 2015, we set out concerns about the inaccessibility of the law and asked questions about how both the quality of the law and access to it could be improved.2 In this report, we outline the responses we received to the consultation paper and make recommendations to the Welsh Government.