Internet Newsletter for Lawyers, March/April 2005, by Delia Venables Welsh Devolution and the Web by Marie Navarro I am going to start with a bold statement: The Internet is a useless tool for Net surfers to grasp the legal aspects of the Welsh devolution settlement and its legal consequences. You may find this hard to believe. Surely, the web can provide the solution to any query? However, the internet cannot give an accurate and full answer to these two vital questions: What can the Assembly do? and What law has it produced? So, what is going wrong? 1. The information is not all in one place The Assembly's website at http://www.wales.gov.uk/ does not provide all the legal information anyone would need about the enactments vesting powers in it or the full legislation it produces. For its secondary legislation made by statutory instruments, it provides links to the HMSO website at http://www.hmso.gov.uk/ which publishes the contents of its SIs. However the HMSO site only shows the general and some local SIs made by the Assembly and no other Welsh legislation. One can find all sorts of documents, such as drafts of legislation on the Assembly's website but the final text as in force is reproduced only on HMSO. 2. The legislation reproduced on several websites is incomplete There are whole areas of law or types of legislation which are not reproduced on the internet at all. For example, the non-statutory instrument legislation made by the Assembly which includes such matters as schemes, directions, determinations and codes, is law in force which applies to Welsh citizens, but which is totally unknown to the public or professionals. Such non-SI secondary legislation is totally absent from the web. Another problem is that for some types of legislation not all the pieces of legislation are reproduced. For example, not all local SIs are reproduced either on the Assembly or the HMSO sites. A full list of such current legislation is not reproduced anywhere on internet. In five years of research on Welsh legislation I have never been able to find a complete list of SIs, whether general or local, in any one year. There are always gaps between numbers and I have no idea of what they are and why they are not reproduced in the HMSO list or anywhere else. There is also a lack of a systematic approach to amendments or repeals made to previous SIs whether general or local. One has to rely on commercial databases for that. The accuracy of such databases is discussed below. 3. The information is not easily identifiable Even if some law or legal texts are reproduced on the net, they are very difficult to find. Take the example of secondary legislation. The secondary legislation which applies to Wales is made either by central government in "retained legislation" or by the Assembly in "devolved legislation". Under many Acts, powers are in fact shared between central government and the Assembly. Mostly, what the Assembly's website sets out in relation to the secondary legislation is only a list (incomplete) of Assembly SIs with links to the HMSO site. This is the nationwide official source of legislation produced in the UK, which has a Wales section. But what is missing from the Wales section is the second type of secondary legislation which applies to Wales: the secondary legislation applying to Wales made by central government under retained functions. This information is mixed up with all the other SIs which apply to England only, England and Wales, Scottish SIs, Welsh SIs etc. Nowhere is there a list of SIs which apply to Wales whether they are made by central government or the Assembly. One good thing is that Welsh SIs made by the Assembly have a W. reference number and the Scottish ones have a S. reference number; this helps to identify them as a separate source of legislation. However, the "England only" SIs have not been given an E. number to allow them to be separated from those of the England and Wales SIs which are relevant to Wales. 4. The search engines are often defeated Search engines scan documents looking for particular words required in a search query but if the words do not appear in the legal text, the search engine does not find them. This is the main problem in searching for the legislation relevant to Wales: most legislation applying to Wales does not indicate anywhere in the text that it does so, and also the words "Wales", "Welsh" or "Assembly" are simply not present. Take the example of primary legislation applying to Wales. According to the Transfer of Function Order 1999, certain ministerial powers contained in 350 Acts are transferred to the Assembly. Therefore in relation to such Acts, if you type as your query the worlds "National Assembly for Wales" or even just "Assembly", nothing will come up in the results since what is written in the text of each of the 350 Acts is "Secretary of State" or "Minister". The same problem, with added complications, occurs in new Acts, i.e. the ones made after July 1999. Such Acts use a very wide range of terminology such as "appropriate authority", "highway authority", "relevant national authority" and so on to mean the Assembly. If the new Act amends an act in the Transfer of Functions Orders following the principle described above, then all the times that the Act states "Secretary of State" it means the Assembly but these provisions will not show up in the search results. Very few sections use the term "Assembly" and in these cases the word "Secretary of State" means that the power is not devolved to the Assembly. For secondary legislation made by central government for England and Wales, the custom is that the SI will say nothing specifically about Wales and will not have an extent section. Therefore most SIs made by central government which do apply to Wales will not appear in a search query looking for "Wales" anywhere in the text. This technique of searching for "Wales" in the content of SIs has revealed that some of the SIs made by central government having "(England)" in their titles do not mean that they apply to England only; some of them are even made jointly with the Secretary of State for Wales. 5. The information provided is not always reliable This has to do with technical issues in the drafting of clauses in primary legislation vesting powers in the NAW. To ascertain whether a power is given to the Assembly or not is not an easy task and I have discovered that even very reliable databases such as LexisNexis are not totally accurate in their assessment of what legal provisions are vested in the Assembly. Another main concern about the databases is that even if they provide a very good service showing the current legal provisions in force, this is often only the case in relation to the English provisions; often, because of devolution, the laws in Wales remain the old provisions. But the old provisions do not appear on such databases any more. We have then to go back to the paper copies of the unamended legislation. 6. The navigation and search results display of the Assembly website is difficult The Assembly website is an immense source of information, but it is unworkable. The structure of the website is very complicated, now even split in two: the Parliamentary side of the Assembly and the Assembly Government each have their own area within a common website and there is no easy way to navigate both sides of the site. It is very easy to miss something. In addition, the search engine provided by the site is very poor. The way the results are displayed is unreadable, not accurate and impossible to work out. What you need therefore is immense patience and a great deal of time to carry out the search - and at the end of this process, the link may not be working. Will this change? As I have tried to describe in this article, there are fundamental issues raised by the Welsh devolution settlement and the way information is provided by the internet. It is just not working well at the moment. Possibly with time, the drafting of legislation will take into account the benefits of the internet and will reflect its requirements as well as helping those who have to read the law applying to Wales. Perhaps, territorial extent sections will become systematic and will list the countries where they apply positively, e.g. "these regulations apply to England and Wales only", and will not state as now "these regulations do not apply to Scotland" where only a search for Scotland would pick this SI up (wrongly). As to the information itself and its accessibility, the Cardiff Law School website "Wales Legislation Online" (see http://www.wales-legislation.org.uk/) is trying to regroup under subject headings as much legislation applying to Wales as it can. Not only is all the primary legislation which give functions to the Assembly in one place, but it contains most of the secondary legislation made by central government which applies to Wales in Acts also giving powers to the Assembly. But we do not set out all the legislation relevant to Wales which do not give powers to the Assembly. With the Law Society and the Assembly Government, we are trying to remedy the lack of publication of non-SI secondary legislation made by the Assembly. It is to be hoped that in time these problems will be overcome and the internet will provide the most useful way of accessing all the information relating to the legislative aspects of devolution in Wales. Marie Navarro is Senior Editor of Cardiff Law School's "Wales Legislation Online" Website at http://www.wales-legislation.org.uk/. She is a Master of Laws from the University of Amiens and she has also studied at Cardiff Law School. Email navarrom1@Cardiff.ac.uk.