Daran Hill says David Jones sees his role as policing legislation made in Wales
Since acquiring primary legislative powers in 2011, the National Assembly for Wales has only passed two Bills. In both cases, the UK Government has contemplated referring them to the Supreme Court. Indeed, one is already there. It deals with the ability of Welsh local authorities to make bye laws, and has been challenged on legal competence grounds by the UK Government. This was the first piece of legislation the Assembly passed using its new powers.
The second Bill, which is intended to give equality to the two languages in Assembly proceedings and in the institution’s dealings with the public, was examined in detail too but ultimately the office of Attorney General Dominic Grieve MP decided not to take the Official Languages Bill to the Supreme Court.
From early Supreme Court hearings it is also clear that there is a distinct lack of understanding of the Assembly’s legislative competence by the Supreme Court – the devolution settlement had to be described to them more than once – and perhaps by the UK Government too. These responses to two relatively anodyne pieces of legislation are illustrative of a broader tension in the relationship between the National Assembly/Welsh Government with the UK Government and do not necessarily bode well for the future. Indeed, the outcome of the Supreme Court’s deliberations on the Bye Laws Bill will critically influence how the two governments inter-relate on the output of the Assembly’s new legislative powers for some years to come.
Manon George from the Wales Governance Centre, who wrote on the Supreme Court case here, also addressed the topic at a recent conference on Law, Policy and Politics in Wales, probing the issue of the Assembly’s Legislative Boundaries. She began her analysis by suggesting that the boundaries of legislative competence needed to be examined. She noted that the Government of Wales Act 2006 states clearly that the Counsel General or the Attorney General may refer the question whether a Bill, or any provision of a Bill, is within the Assembly’s legislative competence to the Supreme Court.
She said the question raised by the referral of the Bye Laws Bill to the Supreme Court was one of motive. Was its referral connected to whether the ‘general purpose’ of the Bill, which was to create a more streamlined procedure at the local Government level, should be accepted? Or should the fact that the action was not within the competence of the Welsh Government be the determining factor? Her key point was this: if it is the latter then the Welsh Government has to face the possibility of the competence of every piece of Assembly legislation being sent to the Supreme Court.
There seems to be a problem of approach at the heart of this. It feels increasingly that the Wales Office sees its role as ‘rigorously policing’ legislation made in Wales. It is adopting a sceptical and begrudging tone to the Assembly’s legislative competence rather than being an enabler or supportive friend. Undeniably personalities and predilections are important here, and intergovernmental relations also need to be improved between Wales and Westminster. This is of course more difficult while different parties are in power in the different places, but that is not the only dimension. Whether the arrival of Liberal Democrat and pro-devolutionist Baroness Randerson into the Wales Office has helped with a more pragmatic approach to the Languages Bill is a debatable point. More clear is that new Secretary of State David Jones is going to raise an arched eyebrow at every Assembly Bill.
That the Languages Bill has been cleared after possible Supreme Court referral is some comfort to those looking for a more harmonious relationship between the two governments. But the fact remains that it almost ended up in the Supreme Court too.
The Wales Office needs to realise that things have changed since the start of devolution and have changed again since 2011. In her presentation Dr George suggested that a clear reform of the legislative boundary is the best option, adopting the Scottish model which would set out clearly what is not within the Assembly’s competence rather than specifying what is. To achieve that would require yet another Government of Wales Bill and some of us are more keen to just see people try harder to make the current democratically endorsed system work more effectively before looking for a third Welsh constitution in as many decades. The Supreme Court’s response to the Bye Laws Bill will be critical in determining whether this change of tone happens.