Internet Newsletter for Lawyers |
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A practitioner's guide to Welsh legislation on the web
Before considering the merits of the National Assembly's website at http://www.wales.gov.uk (and see also the article by webmaster Anne Hemming here) it is necessary to place the site in the context of legal practice in Wales and beyond. Large numbers of solicitors still do not have easy access to the web on their desks or even in their offices. Practice in Wales is broadly not as profitable as elsewhere in the country and investment in IT is not always the top priority. Outside the main urban areas, access to the internet can be slow with ISDN lines unavailable or expensive and major problems with installation of ADSL, as elsewhere. Thus, some users will be very competent experts but the majority will be only semi- proficient, without access to the latest high speed technology.
The assembly website at is a useful tool for practitioners and huge improvements have been made in both the format and content of the site in recent months but there is still a long way to go, bearing in mind that this is essentially the only resource available to lawyers needing to advise clients on topics covered by devolved legislation. A few publishers, notably Butterworths, refer to Welsh SIs in their standard texts but only in the form of footnotes. Circulars and directives are omitted. The Assembly website is therefore the only resource available.
However, the site is not set up as a major legal resource and that is the nub of the problem. It seeks to fulfil a number of different functions simultaneously. It is a public site for Assembly news, press releases, public information and as a point of contact with Assembly members. Its function as a tool for professional research is something of an afterthought which highlights the fundamental difference in approach between the Assembly and the profession. The Assembly has a duty under the Government of Wales Act (GOWA) to publish its output. It considers that it fulfils this obligation by publishing (or referring to) its legislation on its website.
However, the legal profession, on behalf of its clients, is trying to find the solution to clients' problems. This requires a totally different mindset and the need to search the Assembly legislation by means of subject matter, which is currently not possible. Anyone knowing which piece of legislation they want to see can find it easily on the Assembly site (or the HMSO site for Welsh Legislation) to view and print. But this is not usually the solution, we need to search the site like any other legal resource.
There is a facility for asking questions of the staff servicing the specialist committees. This is new and so far untested. However, it requires some knowledge of the Assembly to determine which committee to approach and will not be a useful research tool until the service level agreement for response to such requests comes down from its present target of fifteen days. In any event, as this is a public site, such enquiries will always be mixed up with questions from members of the public excercising their democratic rights.
Assembly legislation has a significance for a wide variety of lawyers both in Wales and elsewhere. The Law Society has been running an awareness campaign since well before the creation of the Assembly, alerting the profession to the divergence of legislation, its significance in everyday practice and the potential for negligence claims against those who fail to advise their clients correctly in ignorance of Welsh legislation. However, practitioners can be forgiven for finding the whole subject an almost impenetrable minefield. The distinction between primary and secondary legislation as applied to Wales has now all but disappeared. Primary legislation is passed without any consistent means of identifying its application to Wales, the extent of the Assembly's powers of amendment by secondary legislation or any disparity in commencement dates. The information contained in the Assembly's website is technically correct but it is virtually impossible for the practitioner to comprehend it in the wider context of the general law.
Consolidation of legislation would be a great help but even Parliamentary Counsel, at a recent seminar, fought shy of the complexity of the task, given the patchwork nature of the Assembly's powers under the Transfer of Functions Order. What chance for the rest of us?
The format of the Assembly site is essentially clear and easy to navigate. It is bilingual, with an option to view in either Welsh or English. Unfortunately, that option ceases on reaching the texts of the SIs which are in split screen format with Welsh on the left and English on the right. Whilst appreciating that this is necessary at the drafting stage to ensure consistency of meaning, very few practitioners want (or are able) to compare the two translations and most would want access in one language or the other. This is another illustration of the site's multi-purpose role, not as a dedicated legal tool.
In Wales, circulars and directives have force of law but their texts are not available on the website. As this is the only research resource available, practitioners have great difficulty finding out whether there are any such instruments relevant to the subject of their enquiry. They don't know what they don't know.
It is easy to dismiss the Assembly's legislation as peripheral and irrelevant. This is wrong and potentially disastrous, in terms both of the client's interests and the solicitor's indemnity policy. A practical example from my own field, mental health, illustrates both the significance of the Assembly's powers and the difficulty of keeping track of its excercise of them via its website.
In the course of researching this article, I happened by chance on an Assembly consultation document on patient advocacy. It was clear from that document that the Assembly does not intend to follow the government's proposals to abolish Community Health Councils and replace them with the Patient Advocacy Liaison Service. There will therefore shortly be a significant difference between England and Wales in the method of representing patients' rights. The abolition of CHCs is widely considered to be a contentious development, particularly in the field of mental health and human rights. There is currently a white paper in circulation for a new Mental Health Act which includes provision for advocacy by the PALS, overseen by a new Mental Health Commission. When the new Mental Health Act becomes law, it will be primary legislation but will be operating in a completely different framework of patient advocacy arrangements in Wales, which will also require significant amendment of the remit of the Mental Health Commission, with considerable human rights repercussions. There is a very real legal issue here.
I then tested the Assembly website to see how I could have discovered this other than by chance. A search of mental health did not refer me to the consultation paper but referred me to the Health section of the site. It told me that it had found 168 matches but curiously after the first few almost all the matches were identical. I then tried the Boolean search option under mental health and advocacy. This was refused for want of a connecting word between mental and health so I tried mental and health and advocacy and came up with no matches. I have no doubt that I could eventually have found the consultation document by constantly refining the search but that simply illustrates the need to know the precise specification of the needle before approaching the haystack.
During the passage of the GOWA through Parliament, the Law Society took considerable encouragement from the inclusion of s.115 which requires the Assembly to "carry out consultation with such organisations representative of business and such other organisations as it considers appropriate having regard to the impact of the exercise by the Assembly of its functions on the interests of business". We had hoped that this would lead to a system of consultation and discussion on forthcoming legislation such as that now operating in Scotland between the Scottish Law Society and the Scottish Parliament. In practice, the full procedure for legislation in the Assembly is so cumbersome and potentially time consuming that almost all legislation is passed under the fast track procedure which by-passes most of the consultation processes.
This is unfortunate because the profession is not aware of forthcoming legislation until it appears on the website as a draft SI currently before the Assembly, already "made" with a coming into force date. There is therefore no real opportunity to participate in consultation on legislation. It is difficult to know what is coming up except by constantly monitoring the site. This is difficult for the Law Society and large firms but almost impossible for smaller firms who may have a constructive and useful potential input into a piece of legislation which may affect their niche area of practice. An example might be agricultural specialists wishing to comment on the implications of the use of the Assembly's powers in relation to the import of seeds.
The Law Society tries to keep abreast of developments by attending the weekly meetings of the Assembly's legislation committee, but only certain pieces of legislation find their way onto the agenda. The list for each meeting is published but it is necessary to download each document separately to see if it is relevant. Agendas are not published until very shortly before each meeting so that casual researchers are only able to see the minutes of the last meeting and are therefore always working in arrears.
All these problems are regularly aired at the bi-monthly liaison meetings between representatives of the Law Society and the Office of the Counsel General. Winston Roddick and his staff, particularly Anne Hemming, have been very helpful in acknowledging the problems of the profession in gaining access to the Assembly's legislation. Unfortunately not everyone within the Assembly fully understands the profession's need to be involved and it was, again, only during the course of writing this article that I became aware of the Assembly's "Information and Communication Technology" (ICT) consultation - "the largest electronic consultation the Assembly has so far undertaken" - which closed on 14th March. Had the profession been included in that, we could surely have made a significant contribution to the debate on the Assembly's electronic output.
It is vital that all the Assembly's decision makers understand the need for a searchable and complete legal resource. In its response to the Presiding Officer's recent internal review of Assembly procedure, the Law Society repeated its suggestion that the Assembly should actively investigate the potential of BAILII as the system which would provide the solution to the problem of disseminating its legislation in a useable form. It seems to us that Wales would be an ideal pilot project for BAILII if the Assembly would consider diverting some of its resources in that direction. For the sake of the profession and the public it serves, I hope the determination will soon be found to take up that offer and thrive.
Carolyn Kirby is the Deputy Vice President of the Law Society of England and Wales and has been the coordinator of the Society's Welsh Devolution Group since its inception. Email sxlawsoc@aol.com.
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