The High Court has recently given an interesting insight into the broader question of the scope of Welsh Minister’s powers when exercising their executive functions under the devolution settlement.
In Brynmawr Foundation School, R(on the application of) v Welsh Ministers and another [2011] EWHC 519 (Admin), Brynmawr Foundation School (school) challenged the arrangement Welsh Ministers made with Blaenau Gwent County Borough Council (council) under section 83 of the Government of Wales Act 2006 to delegate their function of altering sixth form education provision to the council. Although the school challenged the consultation process on various grounds, including bias and pre-determination, the interesting aspect of the judgment related to the High Court’s decision on the scope of Welsh Ministers’ powers.
Relevant statutory legislation
The starting point for establishing whether there has been an unlawful delegation by the Welsh Ministers of their powers is a consideration of the relevant statutory legislation.
Here, under section 33 of the School Standards and Framework Act 1998 (SSFA 1998) and section 113 and Schedule 7 of the Learning and Skills Act 2000 (LSA 2000), responsibility for considering the restructuring of sixth form education lay with the Welsh Assembly Government (WAG), that is Welsh Ministers, and not with the local education authority. (The only powers local education authorities have in relation to foundation schools are proposals for enlarging the school’s premises or for complete closure; there is no express statutory power for local authorities to propose reorganising sixth forms in foundation schools.)
Government of Wales Act 2006 (GOWA)
Before GOWA came into force, the National Assembly for Wales (Assembly) had no power to legislate (other than to make subordinate legislation) and there was no legally separate executive; executive power was exercised by the Assembly’s First Secretary, other Secretaries and the Assembly’s staff acting as its delegate. However, the GOWA:
- Gave the Assembly power to make laws (known as Assembly Measures) for those specific matters for which legislative competence was conferred upon the Assembly (which under Schedule 5 includes education and training).
- Created the WAG as an entity separate from, but accountable to, the Assembly.
- Contained provisions for further devolution of legislative powers in specified areas, subject to a referendum. For information on the 3 March 2011 referendum which now means that Wales can make laws in all of its 20 devolved areas, without needing UK Parliamentary approval, see our legal update.
Under section 56 of GOWA, the WAG not only has the functions conferred on it by GOWA, but also those under any other enactment or prerogative instrument. The exercise of those functions is dealt with by section 57 of GOWA (which are defined in section 158 to mean “power or duty”). In addition, certain other powers and duties are transferred to Welsh Ministers under transitional provisions set out in section 162 and Schedule 11 to GOWA.
The legal challenge
In order to deal with the lawfulness of the arrangement between Welsh Ministers and the Council, the High Court had to establish the true meaning and effect of section 83 of GOWA, which gives Welsh Ministers power to arrange for “any relevant authority” to exercise any of their functions (section 83(1)(b)). Section 83(4) of GOWA specifically provides that any local authority is a “relevant authority”. The power in section 113A of the LSA 2000 is conferred on Welsh Ministers by section 162 and Schedule 11 to GOWA. Therefore, the functions conferred on Ministers under section 113A (which relate to inadequate sixth forms) are functions that the Welsh Ministers can arrange to delegate to any local authority.
In challenging the legality of WAG’s delegation of its powers to alter post-16 provision in a foundation school to local authorities, the school made various submissions:
- GOWA did not contain specific provisions for education and training. Therefore, the legal regime for educational provision was the SSFA 1998 and the LSA 2000.
- Although the Assembly had power to legislate to modify section 33 of the SSFA 1998, so that a local authority as well as Welsh Ministers could consult upon and propose alterations to sixth form provision in a foundation school, it was not open to Ministers to bypass that legislative process by making an arrangement under section 83 of GOWA with the council. Therefore, the arrangement made by Welsh Ministers with the council was an unlawful delegation of their functions.
- The well-established principle of statutory interpretation applied; that is if a matter fell under a specific provision (here, section 33 of the SFA 1998) and a general provision (section 83 of GOWA), it should be governed by the specific provision.
- The discretion conferred by section 83 of GOWA could not be used to delegate the power to make proposals for the reorganisation of sixth-form education in foundation schools, since that was contrary to the policy and objects of the relevant provisions in the SSFA 1998 and the LSK 2000.
The Welsh Ministers submitted that:
- The power in section 113 of the LGA 2000 to propose prescribed alterations was a function that was not excluded from section 83 of GOWA.
- As a function within GOWA, they were empowered to enter into an arrangement with a relevant authority, such as a local authority, so that a function could be exercised by that authority.
- It was not consistent with the constitutional framework of GOWA to read implied limitations into section 83. The clear and express wording of GOWA transferred the powers in the LGA 2000 to Welsh Ministers and gave them power to make arrangements for a relevant authority to exercise their functions.
High Court decision
The High Court dismissed the delegation challenge mounted by the school in judicial review proceedings. In rejecting the school’s claim that there had been an unlawful delegation of power, the High Court:
- Considered that section 83(3) could not be set aside in the way suggested by the school. The need to specifically exclude subordinate legislation showed the breadth of the language of section 83 and demonstrated that Parliament had considered whether to limit its scope. If Parliament had wanted to, it would have been possible to exclude the functions of section 113A of the LSA 2000. What was clear, however, was that in 2006, Parliament intended Welsh Ministers to have the power to enter into arrangements with respect to their functions with other relevant authorities, including local authorities.
- Rejected the school’s submission that section 33 of the SSFA 1998 meant that the council was impliedly prohibited from consulting on and making proposals about the sixth form of a foundation school. That submission did not take sufficient account of the constitutional nature of GOWA and that section 83 was part of the machinery given to Welsh Ministers to exercise their executive functions under the devolution settlement.
- Held that the language of section 83 was clear and, in view of the constitutional status of GOWA, expressed reluctance to read implied limitations into the section by reference to legislation that was not of a “constitutional” nature.
For materials on the framework for governance in Wales, see Practice note, Central government: sources of powers and statutory interpretation see Practice note, Statutory interpretation.
This decision is interesting as it demonstrates the relationship between existing legislation and overarching legislation dealing with devolution, in this case whether the relevant power was to be found in the SSFA 1998 and the LSA 2000 or under GOWA. It is unlikely that, following the results of the Welsh referendum on increasing the WAG’s law-making powers, such an issue will come before the court again, as the WAG now has the power to make legislation directly relevant to the various areas for which it has devolved responsibility, including education and the interplay between this and overarching devolved legislation will be dealt with.