Memorandum submitted by The Law Society,
Wales
We write in response to the call for evidence
in relation to the above inquiry. The Law Society is the professional
body for solicitors in England and Wales. The Society represents
the solicitors' profession and has a public interest role in working
for reform of the law.
The Law Society's Wales committee terms of reference
include monitoring the progress of devolution in Wales and the
programme of devolved legislation in Wales; disseminating to the
profession in Wales and to solicitors in England information about
the activities of the National Assembly for Wales and the Welsh
Assembly Government and the impact of Welsh legislation.
Our particular concerns relate to access to
Welsh legislation.
The piecemeal transfer of functions and law-making
powers is making for a very confused legislative system. The Committee
will be aware that following the elections in May the National
Assembly for Wales will gain primary law-making powers under the
Government of Wales Act 2006 ("the Act"). The Act provides
for Assembly Measures and for Orders in Council to extend the
Fields.
In addition to the provisions in the Act the
Westminster Government is actively "delegat[ing] to the Assembly
maximum discretion in making its own provisions, using secondary
legislative powers" ("Better Governance for Wales"
paragraph 1.24).
In the White Paper it is stated "The Government
favours an incremental approach | which provides the best possible
legislative framework for Wales and the UK" (paragraph 3.13).
However, this incremental approach will result in legislation
made under differing powers and will produce a complicated body
of laws.
The Law Society's Wales Committee has been lobbying
for a formal system for producing, collating and publishing non
general Statutory Instrument legislation to be adopted since no
system was implemented by the National Assembly or the Assembly
Government. In response, the Presiding Officer prescribed model
forms under the Assembly's Standing Orders for Assembly General
Subordinate Legislation. This came into effect from 1st January
2006 and a system was established to coordinate and produce all
relevant legislation including publishing the legislation on the
Welsh Assembly Government's website. This legislation will continue
to be made in future by the Welsh Ministers.
We have been pursuing a single register of Welsh
legislation as it has been so difficult to access all the subordinate
legislation applicable in Wales since powers were first devolved
following the 1999 elections. As the Assembly Measures will be
primary legislation we have been told that they will be published
formally in the same way that Acts of Parliament are published
through HMSO. However, it is particularly important that a single
register is maintained for all Welsh legislation as the sources
and classes of legislation are numerous and complex and there
is little evidence that commercial providers will collate legislation
for Wales as well as for England in specialist legal publications.
The provision of a register of Welsh legislation
will not preclude the publication of Assembly Measures and thereafter
Acts of the Assembly through HMSO but there is a very real concern
that without a formal system for maintaining a record of current
legislation major problems will occur not least with what part
of each Act of Parliament subsists following the passing of Assembly
Measures to amend them.
The legal system can only operate and solicitors
be able to advise clients if the law is accessible. The absence
of a central repository clearly setting out the law opens the
possibility of actions for negligent advice brought against solicitors
who have no means of ascertaining the law when advising clients.
If sued, a solicitor may seek to join the Assembly in any action.
We would ask the Committee to consider Westminster's
responsibility to ensure that where it devolves powers a simple
and accessible body of law evolves, too. We would request that
the Committee considers recommending a single Register of Welsh
Legislation.
I should be pleased to respond to any requests
for further input as necessary.
Kay Powell,
Policy Adviser
17 April 2007
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