The future of Welsh law: A programme for 2021 to 2026 - annual report 2022 to 2023 - Annex

1. The Legislation (Wales) Act 2019 (“the 2019 Act”) was passed by the (then) National Assembly for Wales on 16 July 2019 and received Royal Assent on 10 September 2019. The 2019 Act makes provision about the interpretation and operation of Welsh legislation, and requires the Counsel General and the Welsh Ministers to take steps to improve the accessibility of Welsh law:

1. Part 1 imposes duties on the Counsel General to the Welsh Government and the Welsh Ministers relating to the accessibility of Welsh law.
2. Part 2 makes general provision about the interpretation and operation of the 2019 Act itself and of Welsh legislation enacted after Part 2 comes into force.
3. Part 3 gives the Welsh Ministers powers to replace descriptions of dates in Welsh legislation and to make subordinate legislation in different forms, and provides for the combination of subordinate legislation that is subject to different procedures in the (now) Senedd.
4. Part 4 contains general provisions, including consequential amendments to other legislation and provision about when and how the 2019 Act would come into force.

2. The 2019 Act forms part of the Welsh Government’s wider programme of improving the accessibility of Welsh law and clarifying and simplifying the operation of Welsh legislation.

3. When the Bill, that would become the 2019 Act, was introduced into the National Assembly the Government committed that legislation would be reviewed in 2026 at the end of the first Assembly term in which a programme under Part 1 of the 2019 Act would have been delivered. During the scrutiny of the Bill, the responsible Committee for the Bill – the Constitutional and Legislative Affairs Committee – considered this commitment. In the Stage 1 report of that Committee, they recommended:

Recommendation 6

Subject to the Bill receiving Royal Assent, the Counsel General should commit to a review of the legislation at the mid-way point of the first Assembly term in which the legislation takes effect, i.e. by the end of 2023.

4. The Counsel General, as the Member in Charge of the Bill, accepted this recommendation, together with a related recommendation that annual (rather than periodic) reports be made on progress against a programme prepared under Part 1 of the Bill. In the General Principles debate on the Bill held on 2 April 2019, the Counsel General explained that as part of the annual reporting process “we will also review the effectiveness of Part 1 of the Bill at the midway point of the next Assembly term.”

5. The Finance Committee also reported on the Bill during Stage 1 of the National Assembly’s consideration. They recommended:

Recommendation 2

The Committee recommends that relevant review activity associated with the Bill consider the resourcing and financial implications of delivering the Bill’s objectives.

6. This recommendation was also accepted by the government.

7. On 18 June 2019, following the Stage 2 proceedings on the Bill, the Counsel General laid a revised Explanatory Memorandum to the Bill before the National Assembly. He also wrote to the Chair of the Constitutional and Legislative Affairs Committee, setting out that:

…the mid-term review would primarily do 2 things: firstly, it would report on the progress of implementing the programme to improve the accessibility of Welsh law and to consider whether the proposed content of it should be changed; and secondly (and more generally) it will provide post-legislative scrutiny of the Bill itself, including the Parts 2 and 3.

8. During the Stage 2 proceedings before the Constitutional and Legislative Affairs Committee, the Counsel General was invited to write to the Committee with the government’s views on how Assembly Members could influence the content of the mid-term review. The Counsel General’s letter of 18 June 2019 offered to:

…make my officials available to the Committee … to understand what the Committee would consider important, and to gain a fuller appreciation of how current Members could envisage a future Assembly engaging in the process of the mid-term review. I hope that these conversations could help shape any views this Committee may want to pass on to its successor towards the end of this Assembly.

9. The Committee did not subsequently provide any views on this matter either to Government officials or in any published report to its successor Committee. However, the Legislation, Justice and Constitution Committee of the current Senedd reported on the Welsh Government’s draft budget for 2023-2024, and recommended:

Recommendation 4

The Counsel General should, by the end for March, provide an analysis of whether the anticipated additional staffing costs to the Welsh Government set out in the Explanatory Memorandum to the Legislation (Wales) Bill are proving to be accurate.

10. In response the Counsel General explained:

The government has previously committed to set out details of the resourcing and financial implications of delivering the first programme aimed at improving accessibility of Welsh law, and other costs arising from implementing [the 2019 Act]. This commitment was given in response to recommendations made by the Fifth Senedd Constitutional and Legislative Affairs Committee and Finance Committee, following their Stage 1 scrutiny of the Legislation (Wales) Bill. The Government agreed to include these details in the annual report under section 2(7) of the 2019 Act that would be made in 2023. I will therefore provide this information in the report due later this year.

11. This report therefore reviews Parts 1 to 3 of the 2019 Act and considers the resourcing implications of the Act.

Commencement

12. The 2019 Act received Royal Assent on 10 September 2019. Section 43 made provision about when and how the Act would come into force:

1. Part 1 of the Act came into force the day after the Act receives Royal Assent, namely 11 September 2019. However, section 2 had no immediate effect in practice, because the duty to prepare a programme arose for the first time with the Senedd term that began after the section came into force (in other words, the Sixth Senedd that began after the general election held on 6 May 2021).
2. The provisions of Part 2 of the 2019 Act that apply to the interpretation and operation of the 2019 Act itself came into force on 11 September 2019. The power in section 5(2) and (3) to amend Schedule 1 also came into force the day after Royal Assent, in case the Schedule needed to be amended before it came fully into force. This was not ultimately required, although amendments to Schedule 1 were made after it was fully in force – see paragraph 20(f) below.
3. An order was made by the Welsh Ministers to bring Part 2 into force in relation to other Assembly Acts and in relation to Welsh subordinate instruments. The Government’s expectation during the development of the Bill was that the order would bring Part 2 fully into force at the start of a calendar year, so that it would be possible to tell from the year included in the title of an Act or instrument whether Part 2 applies to it or whether the Interpretation Act 1978 applied. This expectation was achieved, with the Legislation (Wales) Act 2019 (Commencement) Order 2019 bringing the remaining aspects of Part 2 into force on 1 January 2020.
4. Parts 3 and 4 also came into force the day after the Act received Royal Assent. This meant provisions in Part 3 could be relied upon in statutory instruments that the Welsh Ministers made from that date onwards (or that they laid before the Senedd in draft on or after that date, in the case of instruments subject to draft affirmative procedure).

Powers of the Welsh Ministers

13. The 2019 Act conferred a limited number of powers to make subordinate legislation on the Welsh Ministers, some of which of have been exercised (see below).

Powers to make subordinate legislation and use

Section 6(2)

The Welsh Ministers may add, remove or amend definitions within Schedule 1 to the Bill, as necessary.

Use - Legislation (Wales) Act 2019 (Amendment of Schedule 1) Regulations 2020.

Section 38(1)

Enables the Welsh Ministers to amend legislation describing a date or time so that it states the actual date or time.

Use - First used in the Legislation (Wales) Act 2019 (Commencement) Order 2019 (but see also paragraph 20(b)).

Section 42(1)

Enables the Welsh Ministers to make further provision in consequence of, or to give full effect to, the Act.

Use - Not yet used.

Section 44(2)

Power to commence the statutory interpretation provisions, insofar as they apply to Welsh subordinate instruments and to Assembly Acts other than the 2019 Act itself, into force on a particular date.

Use - Legislation (Wales) Act 2019 (Commencement) Order 2019.

14. The 2019 Act also contained 2 provisions about the exercise of powers in other legislation:

1. section 39 enables the Welsh Ministers to exercise powers to make regulations, rules or orders by making any other of those forms of subordinate legislation.
2. section 40 deals with the combination in a single statutory instrument of subordinate legislation made by the Welsh Ministers that would attract different Assembly procedures, and ensures that the instrument is subject to the stricter of those procedures.

Detail on the subsequent use of these enabling provisions is set out in paragraph 38 onwards below.

Guidance for implementation

15. At paragraph 205 of the Explanatory Memorandum to the Bill, the government noted some actions that could be taken to support implementation of what would become the 2019 Act:

1. Preparation and delivery of guidance – the government set out it would develop and publish non-statutory guidance for drafters of subordinate legislation. The cost would be incurred by the government. The intention was that the guidance would coincide with the coming into force of the interpretation provisions. Preparation costs were to be absorbed within the normal course of business but had been estimated at £5,000 (a one-off cost arising in 2019/2020). The guidance was to be published online only.
2. Information about forthcoming changes – 2 potential actions were identified:
   1. Notification – it was anticipated that Welsh Government drafters, other devolved Welsh authorities that make subordinate legislation, legal professionals, the judiciary and Welsh law schools would need to be made aware of the changes in relation to statutory interpretation. The original intention was to alert relevant organisations and bodies about the new Act, potentially using the Cyfraith Cymru/Law Wales website and providing information to the guidance for drafters of subordinate legislation mentioned above.
   2. Training – bodies such as the Law Society or the Bar Council could choose to provide training or other information on the new legislation to their members. It was also anticipated that information sessions would be provided internally within the Welsh Government.

16. On 27 May 2020 the government published ‘Parts 2 and 3 of the Legislation (Wales) Act 2019: Guidance for preparing Welsh legislation’. This was published later than anticipated (partly to take account of changes brought about by the Senedd and Elections Act 2020 - separate guidance on the implications of Part 2 of the Senedd and Elections (Wales) Act 2020 for legislative drafting has also been published), but an early draft was available for use within Welsh Government pending final publication. No costs, other than opportunity costs associated with the time of a member of the Office of the Legislative Counsel in preparing the advice, were incurred. The final guidance is mainly relevant to:

1. lawyers and officials within Welsh Government who draft Bills and statutory instruments for the Welsh Ministers
2. officials within Welsh Government who prepare subordinate legislation
3. lawyers and other officials who draft subordinate legislation for devolved Welsh authorities (such as byelaws and schemes made by county and county borough councils).

17. No feedback has been received on the guidance since its publication necessitating its update, and it remains available as a helpful guide.

18. Two in-person training sessions were held in October and November 2019 on, primarily, Parts 2 and 3 of the Act for drafting lawyers within Welsh Government. Approximately 100 lawyers attended over the 2 events. More recently a “top up session” was held in July 2023, this time via MS Teams. This session was attended by approximately 70 members of staff and is also available to be viewed as part of an ongoing bank of resources for lawyers within the government. No costs, other than opportunity costs associated with preparation and attendance, have been incurred.

19. Information about the 2019 Act was published on the Law Wales/Cyfraith Cymru website, with the most recent iteration of that information being published in August 2023. A new element of the site is currently being developed – information on a single page about each Act of the Senedd, together with links to any subordinate legislation made under it. The latest version of the information for the 2019 Act has been included as part of that work. This report will be added to that page after it has been laid before the Senedd.

Amendments to the 2019 Act

20. The 2019 Act has been amended several times since it was enacted. The changes have been numerous in part because of the United Kingdom’s withdrawal from the European Union and we do not anticipate that the Act will be changed as frequently in future. Changes have been made as follows:

1. When Part 2 of the 2019 Act was commenced via the Legislation (Wales) Act 2019 (Commencement) Order 2019, the Welsh Ministers used the power in section 38(1) of the 2019 Act. The Order therefore amended provisions in the 2019 Act that refer to the day on which Part 2 comes into force, so that they refer instead to 1 January 2020.
2. Part 2 of the Senedd and Elections (Wales) Act 2020 changed the name of the National Assembly for Wales to Senedd Cymru with effect from 6 May 2020. Schedule 1 to that Act amended the 2019 Act to replace references to the National Assembly for Wales and Assembly Acts with references to Senedd Cymru and Acts of Senedd Cymru, and to insert definitions into Schedule 1 to the 2019 Act relating to Senedd Cymru and Acts of Senedd Cymru.
3. The European Union (Withdrawal Agreement) Act 2020 implemented the Withdrawal Agreement, as agreed between the United Kingdom and the European Union. The Act was required to implement the Withdrawal Agreement for it to have domestic legal effect and to enable the UK government to ratify the Withdrawal Agreement. Consequently, that Act amended the 2019 Act to insert, substitute and amend entries relating to the Withdrawal Agreement and, in particular, the implementation period.
4. The Direct Payments to Farmers (Legislative Continuity) Act 2020 and the Direct Payments to Farmers (Legislative Continuity) Act 2020 (Consequential Amendments) Regulations 2020 made consequential amendments to the 2019 Act (and other legislation relating to the interpretation of Welsh law and other law), to ensure that EU legislation incorporated into domestic law under the Direct Payments to Farmers (Legislative Continuity) Act 2020 is treated in the same way as EU legislation incorporated into domestic law under the European Union (Withdrawal) Act 2018.
5. The Fisheries Act 2020, amongst other matters, extended the legislative competence of the Senedd Cymru so as to enable the Senedd to make primary legislation on fishing, fisheries and fish health matters in the Welsh zone. Consequently, section 46 of the Fisheries Act 2020 amended the 2019 Act to insert a definition of “Welsh zone” into Schedule 1 and adjust references in Parts 1 to 3 of the 2019 Act to legislation relating to Wales in order to reflect the new description of the “Welsh zone”.
6. The Welsh Ministers made the Legislation (Wales) Act 2019 (Amendment of Schedule 1) Regulations 2020 that came into force on 27 November 2020. These Regulations amended Schedule 1 to the 2019 Act, to insert provisions about the meaning of 4 additional expressions (“Equality and Human Rights Commission”, “National Trust”, “Public Accounts Committee”, and “Sentencing Code”) and to amend the definition of the “standard scale” of fines for summary offences because of the Sentencing Code (the restatement of sentencing legislation set out in the Sentencing Act 2020).
7. The European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020 amended the 2019 Act (and related interpretation legislation) to insert provisions about the effect of references to EU instruments that form part of relevant separation agreement law (as defined in the European Union (Withdrawal) Act 2018) on or after the implementation period completion day. The ending of the 11-month period from 31 January 2020 during which the UK continued to be subject to EU rules. (This period was known in the Withdrawal Agreement between the UK and the EU as the 'transition period'.)

21. Further changes will be made to the 2019 Act by the Retained EU Law (Revocation and Reform) Act 2023. This Act will, when fully in force, enable the amendment of retained EU law (known as “REUL”) and remove the special features it has in the UK legal system. It makes amendments to the 2019 Act to replace references to “retained EU law” (and related terms) with “assimilated law” (and related terms). The amendments include changes to Schedule 1 to the 2019 Act, which will supersede all of the amendments made to the 2019 Act by the Direct Payments to Farmers (Legislative Continuity) Act 2020.

22. To inform the process of making Welsh law more accessible, section 1(1) requires the Counsel General (as the Law Officer for Wales), to keep the accessibility of Welsh law under review. Section 2 requires the Welsh Ministers and the Counsel General to develop a programme of action designed to improve the accessibility of Welsh law for each Senedd term beginning with the term following the general election on 6 May 2021. Although the specific content of a programme will be a matter for the Welsh Ministers and the Counsel General, section 2(3) requires each programme to make provision for measures that are intended to consolidate and codify Welsh law, maintain codified law, promote awareness and understanding of Welsh law, and to facilitate use of the Welsh language.

23. The first programme, The Future of Welsh Law: accessibility programme 2021 to 2026, was developed following the general election for the Sixth Senedd and agreed by the Welsh Ministers and Counsel General before being laid before the Senedd on 21 September 2021.

24. Section 2(7) of the 2019 Act requires an annual report to be made on progress against the programme. The first annual report was laid before the Senedd on 7 November 2022. This report forms part of the second annual report now being laid before the Senedd. Both annual reports summarise the work that has been achieved against each programme (and which is not repeated here).

25. Details regarding the resourcing implications of this first programme are set out later in this report.

26. The main purpose of Part 1 was to entrench a commitment to making Welsh law more accessible. This was intended to take effect both as an outward-facing promise to make the rights and obligations of the people of Wales clearer, and as a means of ensuring that improving the situation remains an ongoing priority within the Welsh Government. To date the Part has in our view had the desired effect. Codification in particular has received considerable support from stakeholders and awareness, on the part of ministers and officials, of the practical difficulties caused by inaccessible legislation.

27. The coronavirus pandemic put this commitment to the test in a way that had never been expected. On the one hand, the pandemic led to some of the limited resources allocated to projects designed to make the law more accessible being redeployed, however on the other the Government’s legal response – with communicating requirements clearly to the Welsh public at its heart – was an example of good practice and how things could be improved in relation to all legislation in future. The government recognised from an early stage that it needed to do more to make sure the law itself was easily available and to explain the effect of the law. Considerable effort was given, as a result, to publishing the law quickly – in up-to-date form in both languages, to guidance and to simple messaging in “FAQ” format. The end result, according to a King’s College study, was that the restrictions were significantly better understood in Wales than in England.

28. Part 2 of the 2019 Act makes provision about the interpretation and operation of legislation made by the Senedd or under powers it has conferred, and other subordinate legislation made by the Welsh Ministers and other devolved Welsh authorities.

29. The position before Part 2 came into force was that the Interpretation Act 1978 (“the 1978 Act”) governed the interpretation and operation of legislation of these types. The 1978 Act continues to apply to legislation that was made before 1 January 2020 (when Part 2 came fully into force). The 1978 Act also continues to apply to some very limited categories of instrument that are made by the Welsh Ministers and other devolved Welsh authorities under certain powers after 1 January 2020, if those instruments also contain provisions that are made by bodies that are not devolved Welsh authorities or provisions that apply otherwise than in relation to Wales. Part 2 applies only to legislation made after that date (and to the 2019 Act itself).

30. Part 2 has therefore applied to the 12 Acts of the Senedd enacted since 1 January 2020, and to 1,176 Statutory Instruments made by the Welsh Ministers, together with approximately 270 items of subordinate legislation made during this period by the Welsh Ministers and further legislation made other bodies (details of which are not held by the government) - for the period up to and including 30 September 2023.

31. Most of the provisions in Part 2 were intended to have the same effect as provisions in the 1978 Act, even if they were expressed in different terms. However, there were some differences that were identified and described in the Explanatory Notes to the 2019 Act.

32. One of the main differences between the 2 Acts is that the 2019 Act does not contain a provision corresponding to section 11 of the 1978 Act. That section provides that expressions used in subordinate legislation have the meaning which they bear in the Act or Measure (or the retained direct EU legislation) under which the subordinate legislation is made. As such drafters of Welsh subordinate instruments need to consider how best to ensure the words used in the instrument have the same meaning as in the primary legislation (where that is the intention). Writing Laws for Wales (the government’s guidance on drafting legislation) and the guidance issued on Part 2 of the 2019 Act cover this in more detail. Evidence from statutory instruments made since the passing of the 2019 Act show a range of approaches are being used, depending on the effect required and other factors, for example whether a specific meaning is derived from caselaw. Anecdotal discussions with drafting lawyers within the Government has shown the guidance on this matter and the context of the instrument being prepared all influence the approach that is adopted, and no single approach is being favoured.

33. Section 35 of the 2019 Act makes general provision about the effects of repealing and re-enacting existing legislation. It is based on very similar provisions in section 17(2) the 1978 Act, but was made wider in some respects to facilitate Senedd consolidation Acts (in particular, section 35 is not limited to cases where the repeal and re-enactment are both in the same Act, and it enables references to a repealed enactment to be read as “including” its restatement for Wales where that is appropriate). Nevertheless, Part 1 of Schedule 14 to the Historic Environment (Wales) Act 2023 made a number of additional transitional provisions dealing with references to that Act and the Acts that it replaces. Consideration is being given to whether it would be helpful to have general provisions of that kind, so that they do not need to be made separately in each Senedd Act that restates existing legislation.

34. Because section 35 provides that where a Senedd Act restates an earlier Act, subordinate legislation made under the earlier Act continues to have effect as if made under the new one. This may mean that subordinate legislation to which the 1978 Act applied now has to be treated as being subject to the 2019 Act. That will generally make no difference, given the close similarity between the two Acts and the fact that nearly all of their interpretation provisions are subject to any contrary intention in the legislation in question. However, in connection with the government’s ongoing work on consolidation of the law, consideration is being given to whether there might be any cases in which it could have unwanted effects.

35. As noted earlier in this report, Schedule 1 to the 2019 Act has been amended on several occasions. Only one of these has been through the exercise of the powers at section 6(2) of the 2019 Act. The government intends to periodically consider further amendments to Schedule 1, to include new definitions of terms or to update terms, as necessary.

36. As noted earlier, Part 3 gives the Welsh Ministers powers to replace descriptions of dates in Welsh legislation (section 38); to make subordinate legislation in different forms (section 39); and provides for the combination of subordinate legislation that is subject to different procedures in the Senedd (section 40).

37. The first use of the enabling power in section 38 was in the commencement order made under the 2019 Act, which amended the Act itself. The power has subsequently been used in another commencement order: the Renting Homes (Wales) Act 2016 (Commencement No. 2 and Consequential Amendments) Order 2022. That order brought the Renting Homes (Wales) Act 2016 into force, to the extent that it was not already, on 1 December 2022. In addition, the order amended 12 statutory instruments to replace references to the day on which section 239 of the Act comes into force with a reference to 1 December 2022. This is precisely the type of change envisaged when the enabling power was created, it ensures that readers of those 12 statutory instruments could see the relevant date without having to undertake further research.

38. Section 39 has been used to make regulations instead of orders and rules – see for example, the Firefighters’ Pension Schemes and Compensation Scheme (Wales) (Amendment) Regulations 2020 and the Local Elections (Miscellaneous and Consequential Amendments) (Wales) Regulations 2022. The “Firefighter Pension Scheme” regulations are an example of why the enabling power was created – the approximately 20 enabling powers required to make those regulations are set out in several Acts, and in one case (section 34(4) of the Fire and Rescue Services Act 2004) were originally envisaged to be exercised by order. Without section 39 of the 2019 Act, two separate instruments would have to have been made – one set of regulations and separately the order. Section 39 permitted a combined instrument to be made, making the law more accessible for the reader.

39. Section 39 has also been used to make an order, rather than regulations – see the Education Workforce Council (Additional Categories of Registration) (Wales) Order 2023. This Order also relied upon the powers in section 40 of the 2019 Act, which permits subordinate legislation subject to different Senedd procedures to be combined into one instrument.

40. Section 40 has been used on at least 22 occasions since the power came into force (including for the Order mentioned immediately above). The purpose of this section is to facilitate the combination in a single statutory instrument of provisions that are subject to different procedures, whether they are made under powers in the same Act or different Acts, and to avoid any procedural difficulties that would be caused by combining provisions in this way. It ensures that the instrument is subject to the most stringent of the procedures that would otherwise apply. Six instruments were subsequently made under the made affirmative procedure, and 16 under the draft affirmative procedure.

41. Reference to section 40 has generally been included as a footnote from the introductory text of the Statutory Instrument, but in a few cases this was not in the Statutory Instrument but instead drawn to the attention of the Legislation, Justice and Constitution Committee in the Explanatory Memoranda that accompanies Statutory Instruments on laying. In one case, both the instrument and the Explanatory Memorandum included a reference to section 40. The Committee has also identified at least one occurrence where section 40 was relied upon, but this was not referenced in either the instrument or the Explanatory Memorandum. Drafting lawyers have been reminded of the guidance on citing section 40.

42. Anecdotal discussions with drafting lawyers within the government has shown that sections 39 and 40 have generally been used to provide for a more logical and coherent position for the users of the legislation or because it has been administratively convenient to make one instrument rather than multiple instruments.

Developing, reporting on and revising the programme under Part 1 of the 2019 Act

43. Preparation of the programme was estimated in 2019, to be an opportunity cost of approximately £12,000 (based on 8 weeks full time activity for one Grade 7/Executive Band 2 official). See paragraph 139 and Table 4 of the Explanatory Memorandum to the Legislation (Wales) Bill.

44. The first programme was developed during a period of intense activity for the Legislative Codes Office relating predominantly to the preparation, registration and publication of legislation relating to the pandemic. Work on the programme was undertaken alongside that other activity, and it is not possible to determine whether it equated to the original estimate of time.

45. Alongside the annual reports, reporting on the programme was also anticipated to happen as an occasional event – for example through the Counsel General answering questions, making statements or as part of evidence sessions to Committees. The costs associated with this were not quantifiable but would be opportunity costs. Activity of this type has occurred since the first programme was prepared. Information for this is generally prepared by the Head of the Legislative Codes Office as part of other duties.

46. The opportunity cost of preparing the annual report was estimated, in 2019, to be approximately £3,000 (representing 2 weeks of full-time activity by one Executive Band 2 grade). See paragraph 140 of the Explanatory Memorandum to the Legislation (Wales) Bill. Two annual reports have been prepared to date. In both cases they have been led by one Management Band 1 grade member of the Legislative Codes Office, as part of other duties, collating contributions from across the organisation on progress under each project. Actual timings for this work have not been collated, but it is considered the original estimate was less than the actual time taken.

47. The opportunity cost of revising the programme was estimated, in 2019, to be approximately two-thirds of the cost of preparing the main programme. See paragraph 141 of the Explanatory Memorandum to the Legislation (Wales) Bill. To date the programme has not been revised, so no costs of this kind have been incurred.

Delivering the programme required under Part 1 of the 2019 Act

48. During the passage of the Bill, including in the supporting information such as the Explanatory Memorandum, it was emphasised that the actual cost of each individual programme would be dependent upon the scale of the activity included in it and the resource allocated to that activity. Best estimates of an indicative programme were set out in the Explanatory Memorandum (see paragraphs 144 to 147), and some costs relating to the anticipated additional staffing that could be required to increase drafting and translation capacity, as well as other staff to work on the non-legislative projects were included (reproduced at Table 2).

Estimated annual cost of delivering a programme of accessibility set out in Explanatory Memorandum to the Bill in 2019

• Cost of drafting resource equivalent to 4 Legislative Counsel: £376,900
• Cost of translation resource equivalent to 2 Legislative Translators: £93,000
• Cost of one Management Band 2 and 2 Management Band 3 staff delivering rolling programme of accessibility projects: £118,500
• Total estimated costs: £588,400

49. In relation to the costs for each consolidation Bill, the Explanatory Memorandum to the Bill made clear (paragraph 146):

…the figures quoted [for each consolidation Bill] are little more than indicative estimates, and should not considered definitive or representative of any or all consolidation projects. This is because the Welsh Government has not yet undertaken consolidation exercises of the type envisaged; secondly, each project will have different demands and requirements based on the existing law being consolidated and codified.

50. The only costs that could be quantified at that time were the anticipated additional drafting and translation costs.

51. Experience gained from producing the Historic Environment (Wales) Act 2023 and preparing 2 other Bills relating to the accessibility of law programme, has shown that there is very little difference in the grade or type of staff involved between a consolidation Bill and a law reform Bill. Policy professionals, subject lawyers, legislative and general translators and drafting counsel are all required. It represents a significant commitment of time and expertise from all involved and is a cross-government activity. This was reflected in the Counsel General’s evidence paper to the Legislation, Justice and Constitution Committee for his attendance on 16 January 2023, where he explained:

…our work to deliver the legislative programme is an element of the work of the Government as a whole and this is the same for the accessibility of law programme – the total overall costs, including that of the Bill work, are met from across a number of portfolios as part of the wider legislative activity of the organisation.

52. Whilst it is not possible to quantify the exact costs associated with the policy professionals, subject lawyers, general translators and terminology professionals involved, most of whom have been working on other matters alongside their work on the individual consolidation projects, it is possible to set out the additional drafting and translation resource that has deployed since October 2021 when the first programme began (see below):

Notes

1. The ALC allocated to this project worked on one aspect of the Bill alongside other projects; the SLC was promoted to this grade (from LC) during this project, and joined the project part of the way through (see also note c).
2. All 4 legislative drafters have worked on this project in occasional periods of quieter time on their other projects, rather than all working on this for a dedicated period of time. Work on this project continues and the drafting resource may change in the future.
3. Work on the planning project has been undertaken by some of the same legislative Counsel who worked on the Historic Environment project, and during overlapping time periods. Work on the planning project continues and the drafting resource may change in the future. The work of the LC on this project has taken place during gaps in other projects.
4. Legislative equivalence has been undertaken by several members of the Office of the Legislative Counsel on all 3 Bills, it is not possible to quantify the numbers or grades (or percentage of time) taken to do this.
5. One senior legislative translator to produce the initial translation and one to edit. Both also contributed to the legislative equivalence process. In addition to this, several other members of the Legislative Translation Unit were brought in at key points of the project.
6. One senior legislative translator to produce the initial translation and one to edit. Both will also contribute to the legislative equivalence process. Work on this project continues and the translation resource may change in the future.
7. "Legislation (Repeals) (Wales) Bill" is an indicative short-title being used to refer to a Bill that will repeal obsolete and spent provisions in relation to Wales.
8. "Planning (Wales) Bill" is an indicative short-title being used to refer to the consolidation of planning law in Wales.

Projects to improve subordinate legislation

53. It is not possible to quantify the exact costs associated with the policy, subject lawyers and translation staff involved in the preparation of the subordinate legislation projects set out in the programme. Most of these staff have been or are working on other matters alongside this work, which is being undertaken as part of their ongoing duties and responsibilities.

Non-legislative projects within the programme

54. The Explanatory Memorandum to the Bill set out (paragraph 147) that:

Activities within a programme which do not involve consolidation or codification are likely to include those undertaken to improve the publication and explanation of Welsh law. For example, the further development of the Cyfraith Cymru/Law Wales website, further involvement in the publication of the law and the investigation and utilisation of emerging technologies relevant to these tasks. Part of the focus would be on issues relating to the Welsh language where, as noted by the Law Commission, there are significant failings in the current systems. These activities would be undertaken in the main by a team of Welsh Government 3 administrative staff at management band 2 and 3 working full time. The estimated cost of this is £118,500 per year. The combined additional costs (to Welsh Government) of delivering an example programme are set out in Table 5 below.

(see also line 3 of Table 2 above)

55. The Legislative Codes Office was formed at the end of 2019 following the enactment of the 2019 Act. The purpose of the team is twofold:

1. to oversee and, in some cases, lead on key projects within the government’s accessibility programme. This includes providing Bill management and governance resource to support consolidation and codification of the law, and
2. to ensure subordinate legislation made by or on behalf of the Welsh Ministers is correctly made, registered and published.

56. Existing resources were utilised:

1. 1 Grade 7 and one Higher Executive Officer, who had been working on the Bill, Cyfraith Cymru/Law Wales and other projects relating to the accessibility of the law
2. 2 Executive Officers, who had been involved in making and registering subordinate legislation.

57. To this, a further HEO and two EO staff were recruited (the resources identified in the Explanatory Memorandum to the Bill). One of the original Executive Officer posts became vacant through this recruitment exercise and was subsequently removed from the structure.

58. From early 2020 to late 2022 both the pandemic and preparations regarding EU exit significantly increased the number of statutory instruments (in particular) that were being made by the Welsh Ministers. This had an impact on the work of the Legislative Codes Office, not only in processing these instruments but also because the team were involved, in some cases, in the preparation, publication and explanation of the subordinate legislation itself. An additional Senior Executive Officer and Higher Executive Officer were bought in to supplement the team.

59. From September 2021 to August 2022 the team was joined by a “Fast Stream” civil servant who worked on, amongst other matters, the technological developments project that was reported upon in the annual report laid before the Senedd in 2022.

60. The current posts within the team dedicated to legislation management and accessibility of the law are:

• 1 Grade 7
• 1 Senior Executive Officer
• 3 Higher Executive Officers
• 3 Executive Officers

Note: some are not full-time posts and some post holders also work on matters other than legislation management and accessibility of the law, and at the time of this report the team is carrying one vacancy.

61. The projects within the current programme that fall to the Legislative Codes Office include:

1. work on the consolidation Bills, which at the present time includes the Legislation (Repeals) (Wales) Bill, the Planning (Wales) Bill and identifying potential further consolidation and codification projects
2. the annotation of Welsh law published on the legislation.gov.uk. As noted in the Counsel General’s evidence paper to the Legislation, Justice and Constitution Committee earlier this year:

   There are three Executive Officer grade staff and one Higher Executive Officer staff trained to work on annotation, and they perform this work alongside other duties, primarily work associated with making, registering and publishing subordinate legislation.

3. the maintenance and development of the Cyfraith Cymru/Law Wales website
4. the wider organisation and publication of the law projects, which include classification of legislation.

62. Alongside this the Office also acts as the main liaison point for the government with the Law Commission.

Additional costs not part of the formal programme

63. Although not part of the formal programme to improve the accessibility of Welsh law, the Counsel General updated the Legislation, Justice and Constitution Committee about work being undertaken by Bangor University:

…an indicative sum of £350,000 [has been allocated] in the Draft Budget for 2023- 24 to Canolfan Bedwyr of Bangor University for language technology work, which includes machine translation. Part of this funding will go towards continuing to gather training data to develop domain-specific machine translation for the justice domain which we started in the 2022-23 financial year.