Problems with the existing legislation
There are over 4,200 scheduled monuments and more than 30,000 listed buildings in Wales and the great majority are in private ownership. The designation, protection and regular management of these historic assets are controlled respectively by the Ancient Monuments and Archaeological Areas Act 1979 ('the 1979 Act') and the Planning (Listed Buildings and Conservation Areas Act) 1990 ('the 1990 Act'). Since formal consents are needed for many works to historic assets and unauthorised works are criminal offences, owners, agents and consenting authorities must make frequent use of the Acts.
However, when they turn to the Acts, they find legislation that seems to be out of step with the current devolution settlement, is cluttered with amendments and is impenetrable to an ordinary reader. These problems will disappear when the Historic Environment (Wales) Act 2023 ('the 2023 Act') comes fully into force in the latter part of 2024. This new consolidated legislation will bring all the existing legislation together in one bilingual Act and deal with the issues identified below.
Anyone reading the 1979 and 1990 Acts for the first time could become very confused about who is responsible for the historic environment in Wales. While the Welsh Ministers are expressly mentioned in some provisions of the Acts, in others, which equally apply to Wales, the Secretary of State is the only authority mentioned.
This situation has arisen because the 1979 and 1990 Acts were enacted by the UK Parliament before devolution, so they understandably impose duties upon and give powers to the Secretary of State. Devolution, however, has brought the responsibility for the historic environment to the Welsh Ministers. Regular users of the legislation will know that there has been a formal transfer of functions — so one can read ‘the Welsh Ministers’ in place of ‘the Secretary of State’ where the law affects Wales. Those unfamiliar with the law are likely to be confused about who exercises authority over the historic environment. Their confusion will only be increased when they find amendments made after devolution, where the Welsh Ministers are expressly given duties and powers.
The 2023 Act rectifies this perplexing situation by restating the historic environment law for Wales alone and vesting responsibility for it explicitly in the Welsh Ministers.
Since they are decades old, both the 1979 and 1990 Acts have been extensively amended. Amendments in themselves are not a problem; they allow legislation to be adjusted in light of experience or altered to meet changing conditions. The issue with the historic environment legislation is that the various UK administrations have all amended the Acts, making it difficult for users to know what law applies to them.
This is particularly true of the 1979 Act which applies to England, Scotland and Wales. More than 40 years after its passage, the Act has now been extensively amended by the governments of all three nations.
Every amendment made by one of the administrations complicates the 1979 Act by leaving a separate trace in the text, perhaps in the form of a new provision or an annotation in a statute. A complex system of numbering for the provisions is made even more bewildering by the fact that Scotland’s statute book is separate to that of England and Wales; some of the amendments to the 1979 Act made by the Welsh and Scottish governments therefore have identical numbers. The result is a convoluted and impenetrable piece of legislation; even legal professionals find it a challenge to determine what provisions are in force and where.
The 2023 Act solves these problems. During the consolidation process, those provisions that apply to Wales have been extracted from the current jumble of the existing historic environment legislation and logically and seamlessly integrated into the new Act, which is free of confusing references to other UK jurisdictions.
Since the great bulk of the existing primary legislation for the Welsh historic environment was enacted before devolution it is only available in English. Only the few stand-alone provisions in the Historic Environment (Wales) Act 2016 were stated bilingually. On the other hand, the subordinate legislation for the historic environment, the responsibility for which is delegated to the Welsh Ministers, is all bilingual. If you wish to consult the law for Wales’ most important historic assets in Welsh, you will only be able to read a fraction of the pertinent legislation.
One of the clearest benefits delivered by consolidation is that the 2023 Act and all of its supporting documentation is fully bilingual. Freely accessible to all, this will provide a secure bilingual foundation for all future enactments.
Although the Acts being considered for consolidation are decades rather than centuries old, some of the language used is already outdated, cumbersome and, occasionally, close to incomprehensible for the ordinary reader. Sometimes, it is a matter of technical or unfamiliar words, but often, particularly in the older legislation, the structure of the provisions can be complex and difficult to follow.
A central aim of consolidation is to improve the accessibility of the law for the people of Wales. The 2023 Act restates the law in clear and easily intelligible language, whenever possible, making it available to as wide an audience as possible.