Daniel Greenberg, PLC consultant:
If the Attorney General’s referral to the Supreme Court of the first Act of the National Assembly for Wales was intended to set firm ground rules for the application and interpretation of the Government of Wales Act 2006 (GWA 2006), then it has succeeded. If, however, it was an exercise in political wing-clipping of this fledgling legislature, then it has spectacularly back-fired.
A unanimous Supreme Court has upheld the legislative validity of sections 6 and 9 of the Local Government Byelaws (Wales) Bill 2012 (Local Government Byelaws (Wales) Bill 2012 – Reference by the Attorney General for England and Wales [2012] UKSC 53). It has done so in a manner that will in practice send a strong signal both to Cathays Park and to Whitehall about the breadth and robustness of the National Assembly’s legislative competence.
There are, indeed, significant implications for devolution generally, as reflected both in the permitted intervention by the Attorney General for Northern Ireland and in the references in the judgments to the position in Scotland.
Part 4 of the GWA 2006 gives the National Assembly power to pass Acts in certain areas of law; they came into force following a yes vote in the referendum prescribed by the Act. (For more information on the referendum, see Legal update, Results of Welsh referendum mean Wales has increased law-making powers.) If there is an issue as to whether a Bill passed by the National Assembly exceeds its legislative competence, it can be referred to the Supreme Court under the GWA 2006. This is what the Attorney General did with the Local Government Byelaws (Wales) Bill 2012 (Bill), (the first Bill to be passed by the Assembly under its new power), which aimed to simplify procedures for local authority byelaws in Wales. For more information on the Bill, see Legal updates, NAW passes Local Government Byelaws (Wales) Bill and WG introduces Local Government Byelaws (Wales) Bill 2011-12.
So what provisions did the Attorney General consider exceeded the NAW’s legislative competence?
The provisions to which the Attorney General objected were sections 6 and 9 of the Bill, which remove the need for the byelaws listed in Part 1 of Schedule 1 to be confirmed by the Welsh Ministers or by the Secretary of State. Section 6 refers to specific enactments which currently require confirmation, and section 9 allows the Welsh Ministers to add to that list. The Secretary of State had been prepared to consent to section 6, but not to section 9.
In relation to section 6 of the Bill, the argument turned principally on whether the removal of the Secretary of State’s powers was merely “incidental to, or consequential on” the primary purpose of section 6. The Supreme Court held, with little discussion, that it was.
As to section 9 of the Bill, the Attorney General argued that it would “confer power” on the Welsh Ministers “by subordinate legislation to remove or modify … pre-commencement function[s]of a Minister of the Crown”. It was therefore outside legislative competence because of section 108(6)(a) of, and paragraph 1(1) of Part 2 of Schedule 7 to, the GWA 2006.
On its face, section 9 is indeed a problem since, as Lord Neuberger expressed, it could be seen as giving the Welsh Ministers “power to add to the scheduled enactments any enactment which gives the Secretary of State or another Minister of the Crown a confirmatory function in relation to byelaws” (paragraph 62, judgment). This would indeed be beyond legislative competence for the reason given by the Attorney General.
But Acts are always required to be read in their context, even if doing so imposes significant limitations on what the words of a provision might mean in another context. So the Supreme Court neatly side-stepped the problem of competence by simply asserting, as a matter of contextual construction, that “… there could be no objection to the section, if the scope of the power it would confer on the Welsh Ministers was limited to byelaws made under enactments which currently satisfy one of two requirements (paragraph 62). The requirements are that the relevant enactment identifies:
- The Welsh Ministers, and not a Minister of the Crown, as having the confirmatory power.
- A Minister of the Crown as having the confirmatory power that can only be removed as an incidental or consequential provision in the manner of section 6.
Although Lord Neuberger indicated that that there are no express words in section 9 of the Bill which limit its scope in this way, he was:
“satisfied that it does have such a limited effect. … Given that the jurisdiction of the Assembly is limited to removing, or delegating the power to remove, functions of Ministers of the Crown when the removal satisfies the requirements of paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act, the Assembly cannot confer a wider power on Welsh Ministers. Accordingly, the wide words of section 9 must be read as being circumscribed in their scope so as to render the section valid.”
This conclusion is supported by section 154(2) of the GWA 2006 (as Lord Neuberger noted) and requires a restrictive construction where there is doubt as to competence. It, provides a very solid basis for the National Assembly in its future attitude to legislation. Although Lord Neuberger added that “although this is a successful outcome for the Assembly and the Counsel General, it cannot be regarded as a setback in practical terms for the Secretary of State”, the political realities are that the referral of the Bill was undoubtedly seen as a challenge to the Assembly, and its having defeated it so robustly will inevitably give it greater confidence in future negotiations with Whitehall and Westminster over questions of legislative competence.