This final part of the first mini-series on a Welsh legal system looks at law-making and the possible relationship between the Welsh Government, Senedd and the judiciary after independence. Contain your excitement.
The next mini-series – focused on policing – will be published sometime in late September/early October.
The future of law-making after independence would be partially dependent on the size of the Senedd and whether Wales continues with a unicameral (single chamber) legislature, switches to a bicameral (upper and lower chambers) system or some other system.
You would assume the case for more MSs would be open-and-shut with independence, though personally I still wouldn’t want to see more than 80-90 members (with more powers devolved down to councils and/or regional governments). While the issue has been discussed since the early 2000s we’re still where we are.
Under a unicameral system post-independence, the law-making process in the Senedd (How are laws in Wales made?) would likely continue as it is now, but there may be more members to scrutinise new laws and the committee system could change.
If Wales switched to a bicameral system then there would be more opportunities for detailed revision and amendments, but laws would likely take longer to pass as they would need to go through separate stages in both the upper and lower chambers.
I’ve covered this in more detail previously:
There have been several recommendations to improve law-making in Wales down the years aside from increasing the number of Senedd members.
The Legislation Act 2019 has addressed some of these. This includes starting the process of consolidation (Part IVa) and ensuring consistency in drafting, language and legal terms. There’s a fairly comprehensive guide to legislative drafting too (pdf).
Various Senedd committees have conducted inquiries into the quality of law-making previously, while the issue has been raised by members on an individual level and by other interested parties:
- Pre-legislative scrutiny should be improved, including a clearer justification for changes to the law in white papers and greater use of draft Bills.
- Possible additional legislative stages, such as a presumption in favour of a Report Stage unless the Senedd votes by a supermajority not to proceed.
- Improved support for the development of opposition-tabled amendments.
- More opportunities to table and debate Members Bills.
- “Framework Bills” – new laws which have little serious detail and leave a lot to regulations/ministerial decrees – should be avoided.
- Explanatory notes/memoranda should be more straightforward and designed around a template where possible, with improved information on the financial impact of a new law.
- A presumption in favour of more post-legislative scrutiny (which is used by the Senedd’s committees to determine how well a new law works).
- Changes to how Senedd committees work, such as – wherever possible – ensuring MSs only sit on a maximum of two committees to build up expertise in particular areas.
Then there’s the issue of reforming the law.
At present, that’s the job of the Law Commission (in tandem with legislators – Part II). After independence, the judiciary (particularly a Supreme Court) would have a role as well. The public would too if amendments to a written Welsh Constitution were subject to a referendum (see also: A Welsh Constitution VIII: Amending a Welsh Constitution).
The present role of the Law Commission after independence could be carried out in several ways:
- Continue to be overseen by the existing (England & Wales) Law Commission – The body is effectively an independent consultancy so, in principle, maintaining their services is a valid option (at least in the short term). The Welsh Government would presumably contribute towards the Commission’s annual running costs, which in 2020-21 were £5.63million (proportional Welsh share of around £340,000 a year)3.
- A Welsh Law Commission – Longer-term this is perhaps the most sensible option. Most law reform agencies are made up of between 4-8 Commissioners appointed from academia, the judiciary or as barristers (in common law jurisdictions) supported by a small number of staff and researchers – some of whom (commissioners and support staff) may work on a part-time basis. A stand-alone Law Commission would be more expensive than contributing to the cost of the existing Law Commission; based on the Irish Law Commission4 it may cost up to £1.8million a year but it depends on the size and scale of the work involved.
- Include legal monitoring and law reform within the remit of the proposed Law Council of Wales – The work of the Law Commission could be folded into the work of a proposed Law Council of Wales suggested in Thomas Commission report5. A Law Council of Wales may be an opportunity to fold in the myriad of legal agencies and regulatory bodies and oversight boards (Part II) into a single organisation, which may improve efficiency. More on this in Part X.
Barring the law being reformed before independence, here’s a list of some areas that could be shortlisted for comprehensive reform after independence.
- Drugs laws – This is as much about policy reform as legal reform and it’s a topic I want to return to in the future. While nobody is willing to admit defeat in the War on Drugs, there’s a case to be made to shift from a criminal justice focus on drugs to a public health focus. This doesn’t mean dealers and suppliers should be let off the hook, but what resources the criminal justice system has should be focused there instead of users. The classification system for drugs probably needs reform as well in light of the disastrous outlawing of “legal highs” in the 2010s.
- Self-defence – The law in England and Wales has always been fairly muddled on this, though it’s a broadly accepted principle that you can use self-defence as long as force is “reasonable” and isn’t motivated by revenge. What we need is a clearer definition of “reasonable”; lethal force by a civilian may be justified in some circumstances and not in others.
- Corporate responsibility & criminal liability – The Law Commission recently launched a consultation on reforms to the criminal liability of corporations/companies. Corporate manslaughter and a failure to prevent certain “white-collar crimes” are already accepted as criminal offences. Given the urgent need to deal with climate change, for example, criminal liability for environmental damage caused by businesses could be extended.
- Criminal procedure for sex offences – The creation of a specialist sex offences court is already under discussion in Scotland. There’s also a need to reform how forensic evidence is gathered in sex crime cases (which is more a policy issue than a legal one). Trials involving sex offences (and related crimes like stalking) could be overseen by a bench of judges rather than a jury and be more inquisitorial than adversarial (Part IVa). There could be new rules over protecting the identities of victims and the accused until an appropriate time. All of this would have to maintain the principle that the accused is innocent until proven otherwise and prevent victim-blaming.
- Defamation/libel – England (and Wales) has some of the strictest libel laws in the world. While it’s important not to enable a free for all that allows people to say whatever they like about someone else without facing any consequences, libel laws have often been used to protect the rich and powerful from public scrutiny (the case that immediately comes to mind being Jacqui Thompson vs Carmarthenshire Council/former CEO Mark James). While there are defences based on truth, honest opinion, public interest etc. the simplest thing to do here would be for the burden of proof that a statement is false/defamatory to be on the person/organisation bringing the case to court (there have been reforms here, but it perhaps doesn’t go far enough). Wales could also abolish some types of “super-injunction”, outright ban public bodies from funding defamation claims and introduce a small claims civil procedure for things like defamatory comments on social media.
- Cybercrime – Current laws on cybercrime, namely the Computer Misuse Act, date back to 1990. While some cybercrimes are likely covered by other laws (such as theft and fraud), technology has moved on so much since 1990 that there have been calls for laws to be overhauled. Earlier this year, the UK Government agreed. Some organisations have campaigned for a public interest defence to be introduced for hacking (i.e. cybersecurity professionals investigating vulnerabilities), improvements to cyber defence and improved measures against online political extremism and harassment.
3: Law Commission of England & Wales, (July 2021). Annual Report 2020-21, Appendix B: The cost of the Law Commission. Available at: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2021/07/6.7452_LC_ARAccounts_202021_WEB.pdf
4: Law Reform Commission of Ireland, (December 2019). Draft Reports & Financial Statements, p11. Available at: https://www.lawreform.ie/_fileupload/annualreports/LRC%20AR%2041%20-%202019%201.pdf
5: Commission on Justice in Wales, (October 2019). Justice in Wales for the People of Wales, p483-485. Available at: https://gov.wales/sites/default/files/publications/2019-10/Justice%20Commission%20ENG%20DIGITAL_2.pdf
