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The provisions of the Government of Wales Act 1998 require the Assembly to publish its legislative output and it could be argued that, in strictly technical terms, it does that. However, the publication is in such an obscure and complex format, and the legislative spread so limited, that the spirit of that requirement is sacrificed to the letter.
One can readily see how this has happened. There were pressures on the limited budget of the Assembly from the outset, and, in an order of priorities dictated by politicians and the public, the creation of a comprehensive website dealing with the intricacies of what most would view as esoteric details did not feature prominently. Staffing up the legal function of the Assembly was not done as rapidly as it might have been, and those who bore the brunt of the onslaught of additional and, for them, unaccustomed work had enough to do simply keeping abreast of the throughput, without having time to consider what would happen to the legislation once it left their desks.
The creation of a brand new legislature is a very rare event, and does not come with the benefit of an Owners Manual. It is therefore necessary for those responsible for the new system to make it up as they go along, and it inevitably takes some time to get it right. In the meantime, mistakes and omissions are inevitable. In the case of the Assembly, there is the further complication of the requirement to publish legislation in both English and Welsh, with neither language having priority over the other. This not only increases the complexity of the process, but inevitably introduces a delay. This in turn may lead to a temptation to introduce a raft of relatively minor provisions by means of non-statutory instrument legislation, to which the same rules do not apply. Unfortunately, neither do the same rules of publication apply to those forms of legislation, and thus over time the raft of unpublished non-statutory instrument legislation has grown to the point that it is not possible to discover the complete legislative position on a wide variety of subjects from the Assembly website.
Avid readers of this Newsletter will recall previous articles in which I have outlined the efforts being made by the Law Society to work with officials at the Assembly to remedy some of these problems (July/August 2001; www.venables.co.uk/n0107welshlegis.htm). David Lambert also wrote about the efforts made by Cardiff Law School to create a website which attempts to draw the threads of the Assembly legislation together (in so far as they are published), in particular introducing a subject matter index and relating the legislative output of the Assembly to central government legislation affecting Wales (July/August 2002; www.venables.co.uk/n0207welsh.htm). The Assembly recently acknowledged the value of that website by agreeing to fund it for the next three years, but of course even that website can only be as comprehensive as the materials made available to it.
At last, however, the passage of time, the constant pressure from the Law Society and others and, no doubt, the implementation of the Freedom of Information Act have brought about a realisation at the Assembly that publication must in future be both comprehensive and timely. The proceedings of the Assembly are governed by various standing orders, of which Standing Order 32.1 states that:
The Assembly shall as soon as may be publish any subordinate legislation made or confirmed by the Assembly which is not otherwise published for sale under the Statutory Instruments Act 1046. Subordinate legislation made by the assembly which is not required to be made by statutory instrument shall be in such form as the Presiding Officer shall prescribe.
We now have reason to believe that the office of the Presiding Officer is prepared to issue a prescription in accordance with this standing order, that all legislation issued by the Assembly be in a standard form, following a numerical system to be overseen by one designated officer. It would follow that all Assembly officers would be instructed to identify all pieces of legislation made in the last five years which do not already appear on the website, so that they could be edited (to identify any non-legislative material) and coded onto the agreed system. They would then be told that any future legislation made otherwise than in the agreed format would not be binding.
We also have reason to believe that all the legislation on the new system will be channelled through to the Cardiff Law School website at www.wales-legislation.org.uk which will become the official portal for publication. If that system proves satisfactory, the current three year funding would become a permanent arrangement.
All of these suggestions for progress have to be agreed by the Welsh Assembly Government, but there is every reason for optimism that, at long last, the entire legislative output of the Assembly will be available in one place and presented in a form accessible to normal legal research rather than being restricted to those with the detection skills of Inspector Morse.
Carolyn Kirby is the Law Society Council member for Mid and West Wales and
was President of the Law Society of England and Wales 2002-2003. She has
been involved with monitoring the setting up and the activities of the National
Assembly for Wales on behalf of the Law Society since the devolution
referendum in 1997. She is currently chairman of the Law Society's Wales committee.
In real life she is Chairman of the Mental Health Review Tribunal for Wales.
Email Sxlawsoc@aol.com.
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