The future of Welsh law: annual report 2023 to 2024

And by the common counsel and agreement … they examined the old laws, and some of them they allowed to continue, others they amended, others they wholly deleted, and others they laid down anew.

Book of Iorwerth 1240

1. This is the third annual report to be prepared under section 2(7) of the Legislation (Wales) Act 2019. It sets out the progress made from 1 October 2023 to 30 September 2024 under the government’s programme to improve the accessibility of Welsh law: The future of Welsh Law: a programme for 2021 to 2026 (revised January 2024).

2. The National Archives intend to develop a subject classification system for all legislation published on the legislation.gov.uk site, including Welsh law. This means they currently have no intention to develop a single classification structure for Welsh law alone, as previously intended. We continue to work with them on this matter.

Consolidation of planning law and supporting subordinate legislation

3. During this reporting period, progress has continued on consolidating the main Acts that provide the legislative framework for the planning system in Wales, as well as certain provisions closely linked to planning currently found in other Acts.

4. The consolidation is expected to result in a very large Bill (around 450 pages in each language). It will also be necessary to make a series of consequential amendments and repeals to other enactments, as well as provide for certain transitional and savings provisions. Rather than include these matters in a Schedule to the main Bill, work is underway to prepare a second, “consequential provisions” Bill. Our intention is to introduce this into the Senedd at the same time as the main Bill, so that the Senedd is able to consider the full picture. Taking this approach is designed to ensure that the substantive provisions (and those that are used the most frequently) are free of lengthy Schedules of consequential and transitional provisions. A similar approach was taken in 1990 when planning law was last consolidated.

5. In line with the government’s legislative statement issued on 9 July 2024, the intention is that the consolidation Bills will be brought forward next year (2025). Ahead of that, work has already begun on developing the subordinate legislation to support the implementation of the Bill. This is a long term programme of work, given the scope and number of likely instruments, so work has begun ahead of introduction of the Bills.

Bill dealing with repeals of obsolete and spent provisions

6. The revised programme identified that a “repeals” Bill would be introduced in this Senedd term. The Government’s most recent legislative statement updated the Senedd to inform them that the Bill would also make provision to formalise the system of making and publishing Welsh statutory instruments. Work on finalising the Bill was undertaken during the reporting period and the next annual report will detail the outcome of the Senedd’s consideration of the Bill. (Update post reporting period: the Legislation (Procedure, Publication and Repeals) (Wales) Bill was introduced into the Senedd on 21 October 2024)

Scoping of further subject areas for consolidation

7. During the reporting period the Welsh Government undertook an internal exercise to consider the consolidation of the law relating to allotments. The work identified this could be a suitable matter for a future consolidation exercise, but the current priority remains concluding the work on planning law. This scoping report will therefore form part of the considerations for the next Government’s programme to improve the accessibility of Welsh law.

8. Initial scoping work has also been undertaken on the suitability of wildlife law and forestry law for consolidation. This indicated a longer-term piece of work would need to be undertaken and any decision on that should also form part of considerations for the next Government programme.

9. Since the last report the Welsh Ministers have asked the Law Commission to consider whether, and how, agricultural law in Wales could be modernised, simplified and made more accessible through consolidation and codification. This project began in the spring of 2024 and was initially expected to report in spring 2025. More recently it has been agreed the report will be issued in autumn 2025, but a further update will be given in the next annual report. The Commission has been asked to consider:

1. what legislation should form part of a code of agricultural law for Wales; and
2. what technical changes or adjustments to the law are desirable or necessary to simplify, streamline and modernise the law into such a code.

Because the current intention is that any future work would be taken forward as a consolidation project, the Law Commission’s considerations will not extend to suggesting proposals for legislative reform or reviewing the substance of agricultural policy in Wales.

10. The Legislation, Justice and Constitution Committee reported on the Local Government Finance (Wales) Bill in March 2024 and recommended that the Minister for Finance and Local Government discuss the priority that should be given to consolidating the law on local taxation with the Counsel General and Cabinet. The government’s response indicated that a range of legislative options were considered and discussed with the Counsel General before the Bill was drafted, and the findings of the Committee’s report will be taken into account when developing proposals for future consolidation projects.

Implementation of the Historic Environment (Wales) Act 2023 and supporting subordinate legislation

11. The Historic Environment (Wales) Act 2023 (Commencement) Order 2024, made on 19 August 2024, set 4 November 2024 as the Act’s overall commencement date. It also commenced a suite of regulation-making powers on 9 September 2024 so supporting regulations could be made prior to the commencement of the Act.

12. Five sets of regulations were laid before Senedd Cymru on 18 September 2024 (all to come into effect on 4 November 2024):

• The Applications for Scheduled Monument Consent (Wales) Regulations 2024
• The Listed Buildings and Conservation Areas (Procedure and Interest Rate) (Wales) Regulations 2024
• The Listed Buildings (Exempt Religious Buildings) (Wales) Regulations 2024
• The Listed Buildings (Partnership Agreements) (Wales) Regulations 2024
• The Scheduled Monuments (Partnership Agreements) (Wales) Regulations 2024.

13. Since these five sets of regulations contain operative law affecting the historic environment of Wales they will, like the Act, form part of the Historic Environment Code for Wales. This is stated explicitly in each set of regulations.

14. The Historic Environment (Wales) Act 2023 (Consequential Provision) (Secondary Legislation) Regulations 2024 also come into effect on 4 November 2025. However, as these Regulations only make amendments to secondary legislation that are consequential on the Act, they have not been included in the Historic Environment Code. The same approach is taken with the Historic Environment (Wales) Act 2023 (Consequential Provision) (Primary Legislation) Regulations 2024, which are concerned with amendments to primary legislation consequential on the Act.

The National Assembly for Wales (Representation of the People) Order 2007

15. A new Order (expected to be known as the Senedd Cymru (Representation of the People) Order 2025) has been prepared and will be consulted on in late 2024 with the aim of making the legislation in the summer of 2025. In addition to being the first bilingual version of this legislation, it will also include updated references and language to improve the accessibility of the legislation. The Order will reflect the necessary changes resulting from the Senedd Cymru (Members and Elections) Act 2024 and the Elections and Elected Bodies (Wales) Act 2024.

16. The current project to consolidate planning law will lead to the creation of a code of law relating to planning in Wales. Subject to Senedd approval, subordinate legislation eventually made under the new Planning (Wales) Act will also form part of this code.

Ensuring Welsh law is available in up-to-date form on legislation.gov.uk

17. The Legislative Codes Office within the Office of the Legislative Counsel has continued to work on this project, alongside the editorial team in The National Archives’ Legislation Services Division. In line with the priorities identified in the last annual report, our focus has continued to be:

1. bringing primary legislation up to date in both languages and maintaining it as further amendments are made
2. bringing statutory instruments made by the Welsh Ministers up to date, working from the current year backwards, and again maintaining those instruments as further amendments are made.

The intention is to complete a year’s worth of statutory instruments before beginning work on the next year, however this does mean that the instruments most frequently viewed by users may be out of date for longer. We have therefore also prioritised some of the most frequently accessed instruments so that users can see them in up-to-date form.

18. The position at the end of the reporting period was:

1. 93.5% of Welsh Acts and Measures were up-to-date in both languages. There were just over 200 ‘effects’ (changes to legislation) to be applied, which represents 0.59% of the total number of amendments made to Acts and Measures
2. overall 76.8% of statutory instruments made by the Welsh Ministers were up-to-date in both languages (comprising 71.3% of Welsh language texts and 82.4% of English language texts)
3. all 2024 statutory instruments made to the end of the reporting period were up-to-date, as were all instruments made in 2023. All but two of the instruments for 2022 are up-to-date and significant progress has been made on the 2021 instruments
4. over 17,700 effects were applied to Welsh legislation during the reporting period, but during the same period just under 15,500 additional amendments were made. At the end of the last reporting period, 59.7% of all amendments had been applied; at the end of this reporting period this now stands at 67.4%.

Expanding and improving the Cyfraith Cymru/Law Wales website

19. During the year a major new section of the website, Legislation in Wales, was developed. This contains a dedicated page for each piece of primary legislation passed by the Senedd since devolution. A new page is added each time a new Act is passed so that a complete record is available to the public.

20. Each page contains a summary of what the Act does, links to the Act and its explanatory materials, the history of the introduction and passage of the Bill through the Senedd and links to the statutory instruments made under the Act to date. New statutory instruments made under Welsh Acts are added regularly, so that the information remains up to date.

21. In the annual report for 2022-2023, it was noted that the final version of the Explanatory Memorandum accompanying each Bill would be published on the Senedd website, and that the Act pages on Cyfraith Cymru/Law Wales would include links to those final versions. After further consideration the Senedd Commission has concluded the pages of the Senedd’s website outlining the history of the passage of each Bill would not be suitable as a permanent repository for these. So, the practice now is that the final versions of Explanatory Memorandums will appear on the relevant Act page on Cyfraith Cymru/Law Wales, where they will be permanently available.

Identifying opportunities to improve digital accessibility of legislation

22. Discussions have been held with The National Archives about moving away from the dual-column format in which bilingual statutory instruments are prepared and published, with consideration being given to publishing them in a similar format to Acts of Senedd Cymru.

Strengthening arrangements for publishing subordinate legislation made other than by Welsh statutory instrument

23. The Legislation (Procedure, Publication and Repeals) (Wales) Bill includes provision about publishing subordinate legislation made other than by Welsh statutory instrument. Subsequent reports will set out more detail on this. However in anticipation of this legislative provision, work has been undertaken to explore the various options available to improve the recording, publishing and retention practices for subordinate legislation made by or on behalf of the Welsh Ministers other than by statutory instrument. Work has also begun to collate subordinate legislation of this kind that is not available on the GOV.WALES website, with a view to retrospectively recording and publishing it so that a complete record is held.

24. Work has also begun to consider how the accessibility of so-called “road traffic orders” can be strengthened. Currently such orders made as statutory instruments, as well as “stopping up orders” (not made as statutory instruments) and other roads orders, are all published on the GOV.WALES website. Whilst the intention is that this will continue, enhanced ways of searching these records and improving listings may aid accessibility.

Developing the government’s approach to preparing bilingual legislation

25. The Translation Service’s new translation memory and terminology management system was fully implemented during the year. The translation memory system makes translation more effective and consistent. The terminology management element has already facilitated work to improve the consistency of the database thereby improving the quality of the records available to in-house translators and the public. Further developments are underway to enable the adoption of more consistent ways of researching, standardising and consulting on terminology.

26. The usual terminology standardisation processes associated with Bills have continued during the year. For example, substantial work was undertaken on planning terminology as part of the work on the consolidation of planning law, resulting in 147 new, amended or confirmed terms in the TermCymru database.

27. As part of its regular work of developing guidance on language and style the Translation Service is developing guidance on spelling borrowed scientific terms i.e. borrowed terms in the fields of physics, biology and chemistry (including the names of chemical elements and compounds) and associated applied fields such as medicine and engineering. This will lead to more consistency within legislation and between legislative and other texts.

28. During the reporting period the Translation Service made regular use of the services of suppliers on the Welsh Government’s Translation and Interpretation Framework Agreement, especially those on the specific sub-lot established for legislation. External providers were given feedback on their work in order to develop the specialist skills required, and individual meetings were held with all providers during the summer to review the arrangements and ensure that full use was made of the provision.

Welsh Language and Education (Wales) Bill

29. Early in the planning stages the Minister responsible at the time for the Welsh Language and Education (Wales) Bill, Jeremy Miles MS, expressed his desire for officials to implement the project mainly through the medium of Welsh. The minister and the Bill team considered the Bill would be a suitable legislative pilot project as the policy team working on the Bill were all Welsh speakers who had extensive experience of working bilingually. Furthermore, the subject matter and ambition of the Bill created a natural expectation that the subject would be dealt with in Welsh. It was therefore suitable to be the first primary legislation project to be fully administered through the medium of Welsh (bilingual working (including drafting) is commonplace but the significance here is that nearly all elements of the internal work are conducted in Welsh.).

30. The Bill was drafted in Welsh and English by the Office of the Legislative Counsel with the Translation Service undertaking an editorial function.

31. The Welsh Language and Education (Wales) Bill was introduced to the Senedd for scrutiny on 15 July 2024.

Review and update guidance on preparing primary legislation

32. Work is ongoing to fully review and update internal Welsh Government guidance that supports the development of primary and secondary legislation. A number of interim updates were made to the Legislation Handbook on Senedd Bills and a revised edition was published in June 2024. A fuller review is planned.

Working with the Law Commission

33. The Law Commission of England and Wales has not yet published the proposals for its 14th Programme of Law Reform but remains committed to working with the Welsh Government and stakeholders in Wales to identify suitable projects.

34. As set out above, the Welsh Ministers have referred the project on agricultural law to the Commission during this reporting period.

The Welsh Ministers laid their 9th annual report on the Implementation of Law Commission Proposals before the Senedd on 19 February 2024.

Corrections to Welsh Statutory Instruments

36. During the reporting period there was further correspondence between the Legislation, Justice and Constitution Committee and the Counsel General regarding the correction of statutory instruments made by the Welsh Ministers.

Inter-office meetings to discuss approaches to legislation on an UK basis

37. The time-limited group established in February 2023 submitted a proposals paper to the Heads of the Drafting Offices in January 2024. It has also asked The National Archives to look more closely at the technical possibilities for presenting legislation and to share its research on the subject.

38. Section 2(6) of the Legislation (Wales) Act 2019 permits the Welsh Ministers and Counsel General to revise the programme. As noted above a revised programme was laid before the Senedd in January 2024.