A Comprehensive Review of Welsh Law-Making

We voted to give AMs law-making powers in 2011, so how has the process been handled since?
(Pic : National Assembly of Wales)

Making new laws is the National Assembly's most important function, though it's a role that – apart from a few high-profile cases like the Human Transplantation Act 2013 – draws little in the way of media coverage or scrutiny.

Last week, the Assembly's Constitutional & Legislative Affairs Committee reported back on their inquiry into all aspects of law-making in the National Assembly – which, as a result of the yes vote in 2011, gave the Assembly powers to make laws in 20 devolved policy areas without seeking Westminster's permission first.

It's probably the most extensive - and needless to say, technical - inquiries an Assembly committee has undertaken. Despite the little ripple its made in the media - apart from one Western Mail article it hasn't been covered anywhere else AFAIK - it's arguably one of the most important inquiries too.

At 100+ pages along, and with a least 40 different areas of focus, it isn't light reading (pdf) – but it is readable, so don't be intimidated by that. Even if you're only partially interested in the mechanics of law-making - particularly if you're a law or politics student studying in Wales - it's worth a glance.

The Committee made 34....yes, thirty-four....recommendations, summarised as :

Welsh Government Law-Making Processes

The Committee recommends the Welsh Government :

• Should undertake a thorough review of its legislative processes - including lines of accountability and decision-making processes.
• Should commit to holding earlier, and more comprehensive, consultations on new laws. The Assembly Commission should also review their approach to public engagement.
• Should review the balance between what's included on the face of the Bill and what's left to regulations.
• Should only introduce "fully developed" Bills to the Assembly.
• Should work with the Law Commission to consolidate Welsh law, and the Assembly's Business Committee should prepare standing orders for Consolidation Bills in the Fifth Assembly (2016-2021).
• Should instruct the Counsel General to begin work on a Welsh Interpretation Act, and for the Counsel General to update the National Assembly on progress made.
• Should record data relating to the scrutiny process to ensure AMs make good use of their time; work with suppliers to find solutions to legislative software problems; and explore the practicalities of introducing a Queen's Printer for Wales.

Drafting of Laws

• There should be a presumption in favour of publication of draft Bills – including Member's Bills.
• Powers to make supplemental or consequential provisions should not be routinely contained in Bills and only reserved for special cases.
• The Business Committee should amend standing orders to ensure Keeling Schedules - bits of bolded/highlighted/strikethrough text which outline changes to other laws brought about by a Bill – are published when a Bill is first introduced.
• The Assembly Commission should review the process for Members Bills, taking into account suggestions from AMs during the inquiry.

Explanatory Memoranda, Terminology & Accessibility

• The Welsh Government should review its approach to explanatory memoranda and publish the results during the Fifth Assembly.
• Explanatory memoranda should explain how a Bill has changed from earlier drafts.
• Separate financial memoranda should be published alongside draft Bills outlining the costs of current policy and the projected costs after legislation has been passed.
• The Welsh Government should work on creating a standard terminology database, in particular with the Welsh Language Commissioner.
• The Assembly Commission should work with the National Archives on improving accessibility to Welsh law, and report back by the end of the Fourth Assembly.

Assembly Scrutiny

• The Business Committee should require the member in charge of a Bill to indicate how they've taken into account human rights legislation, and provide a table of derivations (a reference listing parts of other laws mentioned within the text of a Bill).
• The Business Committee should consider whether a minimum period of time be required for Stage 1 (consideration of the general principle of a Bill by a committee).
• A compulsory Report Stage should be introduced, unless the Assembly agrees by a two-thirds majority not to proceed with one.
• Amendments should be accompanied by text outlining their affect and purpose.
• There should be a review of standing orders in relation to Emergency Bills – which can bypass Stage 1. In particular, the Business Committee should justify bypassing Stage 1 within 2 days of making the decision; plus, the member in charge of an Emergency Bill should issue a statement outlining why bypassing Stage 1 is justified.
• Before the Fifth Assembly, the Business Committee should take into account the pros and cons of changing the committee structure in the Assembly, and publish a report on its final recommendations.

The Welsh Government's Approach to Law-Making

Although the Welsh Government sound pleased with the amount of legislation passed
this term, the Committee wanted more focus on quality of law, not quantity.
(Pic : ITV Wales)

Some 700 pages of primary law have been passed since 2011 – something the Welsh Government seem proud of. However, the Committee believe volume of legislation shouldn't be an indicator of success - as quality and effectiveness of legislation is more important - recommending laws aren't introduced "for the sake of it", or to prove the Welsh Government are achieving something.

They recommend introducing fewer, clearer and more complete laws to ensure an efficient use of resources by both Assembly and government.

There's a desire on the Welsh Government's part to improve law-making, but to do so they have to listen to those who are affected by their laws – though there's a natural temptation to use a Westminster model than developing a system that fits with the National Assembly.

The Learned Society of Wales suggested that because the sum of legislative experience before 2007 was secondary legislation (regulations), this has become a "comfort zone" for the Welsh Government, so they seek to do as much through regulations as possible. This leads to so-called "framework laws", which confer sweeping powers to Welsh Ministers through regulations, but contain little in the way of substance in the Bill itself.

There were also concerns that internal quality controls might not be up to scratch, with various drafting errors in both English and Welsh within the Wellbeing of Future Generations Bill (now Act). Although the Committee recognise drafting laws isn't easy, they say there's a clear need for a structured, well-planned and rigorous control process.

Somewhat embarrassingly for the Welsh Government, the Committee suggest some of the evidence they gave showed a "lack of understanding" of the difference, and boundaries, between executive and legislature - though they didn't elaborate further.

Preparation and Drafting of Bills

There was criticism of the Welsh Government's use of what were
described as "Henry VIII powers" - implying rule by executive decree
....exemplified today.
(Pic : The Telegraph)

The Welsh Government said having a clear policy objective is essential before working on laws, but the response from witnesses was mixed, with many saying that although policy development was generally effective, consultation periods were too short and there were inconsistent publication of white papers. There were calls for consultation documents to clearly state why a new law is needed, and provide more detailed financial information.

On the use of draft Bills for pre-legislative scrutiny, there was broad support for their publication – notably from the Presiding Officer/Llywydd Rosemary Butler (Lab, Newport West) and Counsel General, Theodore Huckle QC. The Welsh Government currently only publish draft Bills for complicated and controversial laws, but there were differing views on what counts as a "complex or controversial law".

As touched on earlier, a major concern is the balance between the use of primary legislation and secondary legislation (regulations) – it's something the Committee say they've criticised regularly.

The Welsh Government argue it provides flexibility and future-proofing, as well as ensuring Bills remain short and clear, while the Counsel General doesn't believe any laws to date have been "framework laws".

Legal consultancy, YourLegalEyes, argued that more should be put on the face of Bills. Framework laws make proper scrutiny difficult as you can't tell precisely what the Welsh Government will do with the powers. The Hansard Society warned of a similar shift towards delegated and secondary legislation in Westminster.

The Learned Society of Wales went as far as calling such practices "Henry VIII powers" – no explanation is given of what they meant by that, but I presume they mean power by executive decree/Enabling Act, particularly if the Welsh Government uses regulations which come into effect automatically without being approved by the Assembly first, known as the negative procedure.

In terms of accuracy of Bills, the Welsh Government said accuracy was determined by three factors : the time available to develop policy, the presence of experts and quality controls.

The Llywydd said drafting errors often hold up proceedings in Stage 1. This is reflected in the Committee's recommendation that only complete Bills should be laid in front of the Assembly in order to reserve Stages 2 and 3 for significant amendments, not extra legislative text to rectify drafting errors and policy mistakes.

The issue of consolidation was also raised. Consolidation means "repairing" old laws - which have been cut to shreds by new amendments, deletions and so forth - in order to produce a single, clear text. There was lots of support for consolidating Welsh law, though it's said to be UK-wide problem, with a specific issue in Wales of trying to decouple Welsh law from English law (The Coming Constitutional Crisis). Despite this, the Law Commission said there was a lack of support and funding to work on consolidation, though they're currently working on a project to consolidate Welsh planning law.

Wales is unique in the UK in that it drafts laws in two languages, though most laws are directly translated from English into Welsh as they're drafted – effectively resurrecting Welsh as a legal language for the first time in 1,000 years. There are obvious challenges – like making sure both versions are legally consistent with one another in terms of interpretation – and it was recommended drafting legislation in both languages at the same time (co-drafting) instead of translating.

Explanatory Memoranda

Explanatory memoranda/memorandums are notes which accompany every Bill outlining the proposals and policy justifications in detail, as well as the costings. What should be included in them is currently set out in the Assembly's Standing Orders, but the quality of explanatory memoranda during the Fourth Assembly is described as "variable".

Witnesses couldn't decide between them whether they were any better or worse than Westminster, though many complaints are familiar – they tend to be repetitive, overly long and sometimes use impenetrable language.

One area that stood out for criticism was financial information. The Wales Audit Office carried out a review into financial information provided in the explanatory memoranda and found there's a lack of clarity in the presentation of expected costs of new laws, and variations in the completeness of this information. They recommend costs be published in a summary table.

Legislative Scrutiny

How laws are made in the Senedd - click to enlarge
(Pic : National Assembly of Wales)

There were clear views that capacity needs to be increased at the Assembly - implying more AMs (see also : How many AMs do we need? and Assembly Commission steps up to the oche) - with comments made that the Assembly lacks a "backbench culture" and the current small number of AMs available to scrutinise laws puts pressure on them.

There were no concerns about standards of scrutiny. However, some witnesses called for more time for scrutiny at Stage 1 (first committee stage) to allow enough time for adequate consultation. Others were surprised by the lack of input from the Finance Committee on some Bills in terms of costs – said to be hampered by a lack of data within the explanatory memoranda.

Welsh Government witnesses, including the First Minister, were against any additional compulsory scrutiny and amendments stages – namely compulsory Report Stages – because of fears that amendments rejected at Stage 3 will be submitted again, and the member in charge will lose control of their Bill.

The Committee rejected those views, and believe once a law has been introduced it's the Assembly's responsibility. They therefore recommend compulsory Report Stages be introduced, unless the Assembly votes by two-thirds majority against one.

Some witnesses complained about their inability to track legislation after Stage 1, more because of the workload involved (due to large numbers of amendments) than the process. It was suggested that amendments could be summarised, or presented in a way – like tracking notes – so readers will be able to see how amendments would change a Bill if agreed.

A more serious matter was what the Committee dubbed "curtailed scrutiny", where laws are fast-tracked. It's happened three times during the Fourth Assembly : the Agricultural Sector Bill, Control of Horses Bill and NHS Finance Bill.

The Welsh Government believe it's appropriate to fast-track laws on occasion, such as time-limits on when a Bill can be effective i.e. becoming law before the next financial year in the case of the NHS Finance Bill.

The Committee and Llywydd believe a decision to fast-track legislation "shouldn't be taken lightly" due to the damage it can do to the Assembly's reputation if something goes wrong. Witnesses suggested more detailed post-legislative scrutiny for laws passed as Emergency Bills, though acknowledged this may place burdens on over-stretched committees.

On public engagement in the legislative process, there were worries that consultation processes aren't good enough and proceedings are too hard to follow. There's also no data available regarding how the Welsh Government engages with the public and civil society on new laws – though the Hansard Society said public engagement with legislative processes is often low anyway.

Members Bills & Other Issues

Of the nine AMs who've introduced Members Bills - including Kirsty Williams (pictured) - only one (Peter Black)
has  seen their Bill become an Act so far,  largely because it fell in line with Welsh Government priorities.
(Pic : Kirsty Williams AM)

Nine AMs have won ballots to introduce their own Bills during the Fourth Assembly - though only one has become law. The Committee took evidence from three AMs who've introduced their own Members Bills :

• Mick Antoniw AM (Lab, Pontypridd) – Recovery of Medical Costs for Absestos Diseases Bill (struck down by UK Supreme Court)
• Peter Black AM (Lib Dem, South Wales West) – Mobile Homes Act 2013
• Bethan Jenkins AM (Plaid, South Wales West) – Financial Education & Inclusion Bill (withdrawn)

They say their overall experiences have been positive, but because Members Bills almost certainly require Welsh Government support to get passed, a number of issues have cropped up in terms of the support and engagement the Welsh Government have offered them.

The Llywydd argued that the Welsh Government should get involved with Members Bill as early as possible, though the entire Members Bill system should be reviewed for the Fifth Assembly.

The First Minister told the Committee the Welsh Government's own capacity to introduce new laws isn't "unlimited", meaning they have to consider how Members Bills impact/interrupt/interfere with their own legislative programme.

Another issue that cropped up is a lack of clarity on how AMs who introduce Members Bills can work with the UK Government when required - such as discussions on legislative competence.

Some suggestions from the AMs include : enabling backbench AMs to table financial resolutions; reconsidering the method for selecting Members Bills; proper monitoring of how backbench laws have been implemented; greater engagement with the public on ideas for new laws.

• Accessibility of Legislation – There's a language/terminology issue that's already been addressed, but there's also an issue of actually finding Welsh law, particularly in legal textbooks. The UK National Archives are working on updating all primary law by the end of 2015. However, professional users of the law often need to access commercial legislative databases to keep up to date on when laws come into force etc.
• Committee Structures – The Third Assembly used separate scrutiny and legislative committees, but these functions were merged for the Fourth Assembly. This has its advantages as AMs can scrutinise both policy and laws at the same time and build up their expertise. However, some witnesses believe the system's led to proper scrutiny of laws becoming "squeezed" amongst subject inquiries. The structure of committees will likely be reviewed before the Fifth Assembly.
• Data – There's little hard data on the scrutiny process itself, despite the availability of information about the law-making process. It's recommended the Assembly Commission begin collecting data on numerous aspects of the legislative process to help identify trends and aid in workforce/workload planning.
• Legislative Software – Software was procured jointly by the Assembly Commission and Welsh Government; the Commission believe it's working well, the Welsh Government disagree and highlight specific concerns with how amendments and drafted and the stability of the software itself.
• A Queen's Printer for Wales – Queen's Printers are crown appointments and are responsible for overseeing the publication of Acts. Wales currently doesn't have a Queen's Printer, while Scotland and Northern Ireland do (though the position's called Government Printer in Northern Ireland). The Committee believe that with full law-making powers it's time to consider if a Queen's Printer for Wales should be appointed/established.

Conclusions

I realise that was a long read, but having just condensed 31,000 words to ~3,000 I have little sympathy for complaints.

I've written something on all but two Bills since 2011. I considered giving evidence to the inquiry as I'm sure - as a lay person who writes about Welsh laws - those views might've been useful. Due to when the inquiry was gathering evidence you can perhaps understand why I didn't.

All in all, I doubt I would've said anything different to the evidence given by witnesses. For example, one of the things I would've suggested is a compulsory Report Stage and that turned out to be a recommendation.

I probably would've suggested (re)introducing Public Bill Committees in order to separate subject inquiries from legislation, but I'm aware of the constraints on AMs' time and numbers, so perhaps that's something that they can look at if the Assembly expands in future, or if the composition/size of committees changes.

It's probably worth having a more structured process for selecting and introducing Members Bills too – perhaps including a formal timetable for ballots, or legislative staff in the Assembly and Welsh Government being specifically tasked to work on Members Bills.

The language of explanatory memoranda and the Bills themselves is always going to be a challenge for anyone not used to grey literature. Though, with one or two exceptions – notably the Wellbeing of Future Generations Bill - it's usually not difficult to understand what's happening. Standardising them in terms of structure and terminology would go some way to making them more understandable and, as the Committee said, more readable/detailed financial information is a must.

Generally, I'd say the legislative process has been pretty smooth though, of course, I'm not involved in the nuts and bolts of making it work.

It's hard to to argue against the Committee's recommendations, nearly all of which are judicious; though one or two – like establishing a Queen's Printer – sound unnecessary. I could see follow-up inquiries being held until everyone is absolutely sure any problems that have cropped up since 2011 are ironed out.