The first Bill to be passed by the Assembly following the 2011 referendum will become law following a unanimous judgement yesterday by five Supreme Court justices that the Local Government (Byelaws)(Wales) Bill is within the Assembly’s legislative powers.
As I previously described in my analysis of the case here and here, the Bill aims to simplify the procedures for making and enforcing local authority byelaws in Wales. Section 6 of the Bill removes the need for the confirmation of byelaws under specific enactments which require confirmation “by the Assembly concurrently with the Secretary of State” under section 236(11) of the Local Government Act 1972. Section 9 empowers the Welsh Ministers to add to the list of enactments not requiring confirmation. However, the Attorney General for England and Wales referred the Bill to the Supreme Court on the basis that these two sections removed Minister of the Crown functions. In doing so, the UK Government argued that the Assembly was acting beyond its legislative competence, as set out in Schedule 7 to the Government of Wales Act 2006.
Against this the Welsh Government argued before the Supreme Court in London last month that, under exceptions to the restrictions in Schedule 7 to the 2006 Act, an Act of the Assembly may remove or modify a function of a Minister of the Crown which existed before the Assembly Act provisions came into force, provided that it is incidental to, or consequential on, any other provision contained in the Act.
In the words of the First Minister of Wales, Carwyn Jones, the Supreme Court confirmed yesterday “that the Welsh Government was right”, by declaring that sections 6 and 9 are in fact incidental to, or consequential on, the main provisions of the Bill, and therefore within the Assembly’s legislative competence.
Giving the leading judgment, Lord Neuberger agreed with the Welsh Government that section 6 is within the Assembly’s legislative powers because the removal of the Secretary of State’s confirmatory powers is incidental to, and consequential on, the primary purpose of the Bill. In reaching this conclusion, Lord Neuberger considered seven main points.
He considered that the primary purpose of streamlining and moderninsing the procedures for making byelaws by removing the requirement of the Welsh Ministers’ confirmation cannot be achieved without the removal of the Secretary of State’s consent. He added that, “the notion that the Assembly would intend to remove the Welsh Ministers’ confirmatory function while retaining that of the Secretary of State is bizzare”.
Secondly, he considered it significant that the Secretary of State’s confirmatory power is concurrent with that of the Welsh Ministers. In interpreting a ‘concurrent power’, he said that the “natural meaning of ‘concurrently’ in a provision such as the 1999 Order… is that they each have a right to exercise the functions separately”. However, he found it “far more sensible and consistent with the purpose of the Welsh Government legislation to conclude that the Assembly and the Secretary of State were each intended to have the power to exercise the concurrent functions, and that it was to be left to their good sense to decide which should exercise a particular function in a particular case”.
Thirdly, Lord Neuberger raised the point that the Secretary of State’s confirmatory power arises from what is in effect a fall-back provision. Because the confirmatory power is only given to the Secretary of State if no other body or person is specified, in his opinion, this suggests that it is not an important function.
Fourthly, and most crucially, “the scheduled enactments relate to byelaws in respect of which the Secretary of State is very unlikely indeed ever to exercise his confirmatory power”, because “they are very much directed to local, small-scale (but important) issues”. Of course, this point is supported by the fact that the Secretary of State has never actually exercised his powers in relation to the contested byelaws, and it was not suggested by the UK Government that there were any circumstances in which the Secretary of State would wish to do so.
Fifthly, it is important to note that section 7 of the Bill establishes new concurrent powers in relation to byelaws other than those under enactments listed in the Bill. In some of these cases, the confirmatory power of the Welsh Ministers is exercisable concurrently with that of the Secretary of State. To Neuberger this reinforces the argument that the Secretary of State’s confirmatory power is redundant in relation to section 6.
Finally, Lord Neuberger viewed it important to arrive at a conclusion which gives the provision in paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act “some real effect”. Referring to this provision that Acts of the Assembly may remove Minister of the Crown functions if the provision is incidental to, or consequential on, any other provision contained in the Act of the Assembly, the Supreme Court held that “it is difficult to think of circumstances in which it would have effect if it does not apply to section 6”.
In relation to section 9, the Supreme Court saw the provision as having “a limited effect”. Despite the UK Government arguing that the power given to Welsh Ministers in section 9 is very wide and that they could potentially confer more powers on Ministers of the Crown, the Supreme Court held, ‘because the jurisdiction of the Assembly is limited to removing, or delegating the power to remove, functions of the Secretary of State where this would be incidental to, or consequential on the purpose of removing the need for confirmation by the Welsh Ministers of any byelaw made under the scheduled enactments, the Assembly cannot therefore bestow wider powers than this on the Welsh Ministers.’
Despite the favourable result for the Welsh Government and Assembly, this is unlikely to be the last word on the extent of the Assembly’s legislative competence. As Lord Kerr said in Martin and Miller v Lord Advocate , it is impossible to devise a comprehensive charter which prescribes the limits of the legislature’s enacting power. After all, that is the inevitable consequence of devolution. However, as the First Minister and the Counsel General for Wales have both said recently, the fact that the Bill was referred to the Supreme Court in the first place, may signal that it is time to reconsider the current devolution arrangements.
In his press statement yesterday, the Welsh Secretary, David Jones, said that the judgment would “assist both the Welsh and UK Governments as to where the devolution boundary lies”. However, it is difficult to see how the boundaries of legislative competence can be fully clarified whilst they are still defined by a conferred powers model. As the Counsel General said, in a lecture at Cardiff Law School last week (here), “the method of conferring legislative competence on the Welsh Assembly produces considerable complications”.
It would be much easier to list all the things that the Assembly cannot legislate on, a reserved powers model as applies in Scotland, rather than construct a comprehensive list of what it can legislate on. Under a conferred powers model, there is still considerable room for conflict on whether something relates to a devolved subject or not. Whilst this devolution model prevails, questions of legislative competence are therefore likely to take up a significant amount of both the Welsh and UK Government’s time.
In his statement the Welsh Secretary added that “any referrals to the Supreme Court should not be seen as hostile, but rather the appropriate mechanism of ensuring devolution works smoothly”. However, it is interesting to note that Lord Hope, in his supplementary judgment, said “it is not for the judges to say whether legislation on any particular issue is better made by the Assembly or by the Parliament of the United Kingdom at Westminster”. After all, he added, “how that issue is to be dealt with has already been addressed by the United Kingdom Parliament”. The Court’s role, he said, is to determine whether the Bill is within competence “by examining the provisions by which the scheme of devolution has been laid out”. If the Wales Office choose not to adopt a similar attitude, there is a danger that questions regarding legislative competence will continue to be referred time and again to the courts.
As the Counsel General said last week, “devolution does not just develop through commissions and settlements; it develops each and every time its limits are considered in the courts”. Yesterday’s judgement is yet another step in Wales’ devolution journey. As Rosemary Butler, Presiding Officer in the National Assembly, said, it “demonstrates that the Assembly is a mature institution that has the right procedures and staff in place to interpret and implement the devolution settlement”.