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A BARRISTER'S PERSPECTIVE ON PROBLEMS
WITH CURRENT
LEGISLATION AND POLICY MAKING IN WESTMINSTER AND CARDIFF
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1.
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The drafting of primary legislation for Wales.
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| 1.1. |
The agreement of the UK Government to consult
the Assembly2 on Bills, which confer new, or alter
existing, functions of the Assembly or otherwise affect
areas of its responsibility, is not an easy one to implement.
The Wales Office, which has the responsibility for taking
primary legislation for Wales through Parliament including
Welsh clauses in England and Wales Bills, can occasionally
miss an issue or a potential for conflict. Sometimes reliance
is placed upon Assembly Government to alert the Wales
Office to particular issues.
3 |
| 1.2 |
The pre-devolution difficulty of promoting
a culture amongst Whitehall officials in which the impact
of legislation upon Wales is readily considered, has been
eased somewhat by devolution. However, there are still
occasions when Whitehall officials who have not previously
encountered devolution, forget to consult. 4 |
| 1.3. |
The process depends a great deal upon the
personal relationships between ministers at Westminster
and Cardiff and between their respective officials. A
new minister with no previous experience of devolution
can jeopardise the progress of a Bill. |
| 1.4. |
An example of the ad-hoc nature of
the process is the proposed pensions legislation. The
"black hole" in the pensions of former workers
at ASW Cardiff has received much publicity in Wales.
The Assembly may well wish to have input into that legislation,
which is still some time away. There appears to be no
formal mechanism for such consultation to take place.
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| 1.5. |
The absence of a clearly defined set of
principles accepted by Westminster and Cardiff does nothing
to promote certainty and openness in a complex system. |
2.
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The treatment of Wales in primary legislation.
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| 2.1. |
The England and Wales legislation, rather
than Wales only legislation, present the major challenge.
The latter, who at present are relatively few in number,
are self contained and easily accessible. |
| 2.2. |
The former, however, can be peppered with
Welsh clauses, which can be difficult to locate. This
adds to the already difficult task of ascertaining the
power that the Assembly has and the legal position in
Wales on a given subject. |
| 2.3. |
The suggestion that every Bill containing
Welsh clauses should have such clauses grouped under
a Welsh part is unhelpful to the practitioner. A logical
flow to a Bill must be the overriding aim.
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| 2.4. |
The greater use of explanatory notes
in legislation would assist. For example, annex B of
the notes to the National Health Service Reform and
Health Care Professions Act 2002 sets out in table form
the effects in relation to Wales.
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| 2.5. |
The choice of Wales only or England and
Wales Legislation is an extremely important one. Clarity
is important in all areas of legislation affecting the
individual, but few more so than the planning legislation.
The Assembly requested a Welsh Planning Bill. That would
have greatly clarified the planning position in Wales.
The present position is that the Office of the Deputy
Prime Minister is putting forward a Planning Bill with
Welsh only clauses. That is a lost opportunity. |
3.
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Assembly consultation in relation to draft legislation.
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| 3.1. |
The Assembly has
developed an effective system for consultation and the
Internet is an important part of that system. |
| 3.2. |
However, independent legal practitioners
are not usually consulted in respect of draft legislation.
That is not wholly surprising given that responsibility
for Criminal and Civil Justice remains with the UK Government.
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| 3.3. |
Such consultation may be useful in particular
areas, for example provisions affecting families, freedom
of information, and individual human rights. There
are bodies that may be consulted which may be able to
provide expertise on such matters, such as the Law Society
Wales, the Wales and Chester Circuit, and the Wales Public
Law and Human Rights Association. The latter is an association,
which includes as its members barristers, solicitors,
academics, and local and national government lawyers. |
4.
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The drafting of legislation in the Assembly and the
procedures for enactment.
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| 4.1. |
Given that the
Assembly lawyers and members started drafting legislation
only 3 years ago with little or no experience, there have
been remarkably few difficulties with and challenges to
Assembly legislation. One reason that is sometimes advanced
is that historically the Welsh are reluctant to make administrative
law challenges. That is a somewhat outdated view. In recent
years there have been many challenges to the decisions
of Welsh local authorities and other administrative bodies,
and there is no reason in principle why the Assembly should
be an exception. |
| 4.2. |
A better explanation
is that the main areas of Assembly legislation affect
local authorities and other public bodies and agencies.
There will usually have been a process of consultation.
Such bodies are properly reluctant to use public funds
to challenge the decisions of the elected body of the
people of Wales |
| 4.3. |
Recently such
a body has succeeded in challenging an order of the Assembly.5
The High Court quashed an Order setting the contributions
of local authorities to the South Wales Sea Fisheries
Committee. The Court found on its true construction that
the Order fixed rather than capped the contributions and
was thus unlawful. Moreover, as the Sea Fisheries Committee
did not then have the power to issue a substituted levy
for the increased amount, the order was unworkable. |
| 4.4. |
The draft order
had been considered by the Business Committee and the
Legislation Committee but pressures of time had prevented
it from being considered by the relevant subject committee,
the Agriculture and Rural Development Committee. |
| 4.5 |
Better draftsmanship
would have saved the Order on the first point, and reference
to the relevant committee might have saved it on the second.
There were severe time constraints in that case, and the
case demonstrates the importance of full consideration
by all relevant committees wherever possible. |
| 4.6. |
There is no reason
to suppose that as experience grows the drafting of legislation
in Cardiff will present significantly greater problems
than in Westminster. |
| 5.1 |
The accessibility
of primary legislation has been touched upon above. |
| 5.2. |
In respect of
secondary legislation, the growing use of this mechanism
by the UK Parliament over the last two decades or so has
presented increasing difficulty for lawyers. The extensive
use of commencement orders to bring into force different
provisions of Acts at different times is a good example. |
| 5.3. |
The passing of
secondary legislation by a different body adds to the
complexity. |
| 5.4. |
Access to the
respective websites of the Assembly and the Wales office
has improved greatly the situation. There remains the
difficulty of having to jump back and forth between the
sites. An automatic link between connected provisions
would be a further improvement. A comprehensive digest
of Welsh Law would be the ideal |
| 5.5. |
When as sometimes
happens a researcher begins with a blank sheet, there
is a need to read around a particular topic first to obtain
an overview. The textbooks or the encyclopaedias are the
best starting points. As these are published in England,
little regard is paid at present to Welsh legislation.
The Planning Encyclopaedia contains a small section for
Wales dealing with circulars, guidance and advice notes
of the Assembly, and that is all. |
| 5.6. |
There are few
researches that do not have access to the Internet, but
they do exist. Their position is very difficult. |
6.
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Timing and divergence from England.
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| 6.1. |
There are as yet
only a few examples of divergence, as a matter of policy. |
| 6.2. |
An important example
of divergence is the abolition of local councillor surcharges,
which has taken place in England but not in Wales. It
is doubtful that this is a matter of policy. |
| 6.3. |
From a practitioner's
point of view, this adds little more difficulty than the
point made in 5.2 above. Commencement provisions need
a great deal of time and care whether English or Welsh. |
7.
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The cost of advising in a complex system
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| 7.1 |
Barristers are
usually instructed by solicitors in order to obtain specialist
advice on a particular aspect of the latters' retainers.
The difficulties outlined above may add somewhat to the
time taken for the barrister to carry out research. |
| 7.2. |
In any given case,
however, it is unlikely that the barrister will have all
the UK legislation at his or her fingertips but not the
Welsh legislation. The amount of legislation now coming
from the UK Parliament is huge in almost every field of
practice. |
| 7.3 |
The reality is
that whether legislation comes from Westminster or Cardiff
thorough research needs to be undertaken. It is unlikely
that devolution adds greatly to the cost of advising |
8.
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The contribution of lawyers to policy making in Westminster
and Cardiff.
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| 8.1. |
Lawyers may contribute
at many different levels to policy making. Many Westminster
MP's are trained lawyers, but at present that is not the
position with Assembly AMs. That may in part explain that
lack of use of Standing Order 31.9. which enables members
to table a motion proposing a Bill under |
| 8.2. |
The Report of
Review Group on Procedure 6 concluded that this could
be addressed in part by building awareness amongst members
in interpreting primary legislation and recommended that
the
Presiding Office, with the Office of the Counsel General,
provide briefing for members on primary legislation and
the legislative process. |
| 8.3. |
In respect of
legislation directed at the Justice System, which of course
is not a devolved matter, the
Law Commission regularly consults with independent |
| 8.4. |
It is suggested
that there is further scope for lawyers to contribute
to policy making in Cardiff. |
1.
In practice at the Bar in Cardiff
since 1980, principally in the fields of chancery planning
and local government. Appointed as a
junior barrister
to the Panel of Public Law Counsel to the National Assembly
for Wales, has acted for and against the Assembly
on a number
of occasions
2
Devolution Guidance Note 9, Office of the Deputy Prime
Minister, October 2002.
3
Evidence of the Secretary of State for Wales to the Select
Committee on Welsh Affairs 18 November 2002.
4.
See note 3 above. |
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