Devolution: A Decade On - Justice Committee Contents

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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