Five judges decide on the extent of Welsh law making

Why would the Secretary of State for Wales want a say in the making of byelaws about the cleanliness of tattoo parlours in Anglesey or the management of mortuaries in Monmouthshire? This is an implicit question that will be decided in the UK Supreme Court next week. The learned judges will decide the freedom with which the National Assembly is allowed to flex its new-found legislative muscles.

On Tuesday 3 July 2012, the long-awaited first Bill of the National Assembly for Wales was ready and awaiting Royal Assent in order to become law. However, at the last moment, the UK Attorney General referred the seemingly uncontroversial Local Government (Byelaws) (Wales) Bill to the Supreme Court, to decide whether it is within the Assembly’s legislative competence. The case will start next Tuesday and will last between two and three days.

The Bill introduces an alternative procedure for local authorities to follow in making certain local government byelaws, by removing the requirement for confirmation by the Welsh Ministers. The Assembly’s legislative competence would appear to fit under ‘powers and duties of local authorities’ in Schedule 7 to the Government of Wales Act 2006. However, clauses 6 and 9 of the Bill have been referred to the Court on the premise that, because of restrictions in Schedule 7, provisions of Assembly Acts cannot remove or modify functions of a Minister of the Crown which existed before Part 4 of the 2006 Act came into force. The crucial exception, however, is if the Secretary of State gives their consent, or if these provisions are incidental to, or consequential on, any other provision contained in the Act.

Clause 6 of the Bill provides that byelaws made by a legislating authority under certain enactments listed in the Bill do not require confirmation, and clause 9 confers a power on the Welsh Ministers to add or subtract to that list. By virtue of these clauses, the UK Government argues that the Assembly has removed, or in the case of clause 9, could remove, functions of a Minister of the Crown.

The assertion is made on the basis that, under section 236 of the Local Government Act 1972, byelaws are required to be confirmed by the authority or person specified in the enactment under which the byelaws are made, and if neither is specified, the Secretary of State with policy responsibility for the byelaw in question. The National Assembly for Wales (Transfer of Functions) Order 1999 transferred these functions to be exercised by ‘the Assembly concurrently with the Secretary of State’, and following legislative devolution, to the Welsh Ministers. Therefore, the UK Government claims that the power to confirm byelaws in Wales is exercised by the Welsh Ministers concurrently with the relevant Secretary of State.

It will be up to the Supreme Court to decide whether clauses 6 and/or 9 ‘remove or modify’ a ‘pre-commencement function’ of a Minister of the Crown, and if either or both do so, whether the relevant clause is ‘incidental to or consequential upon’ any other provision contained in the Bill, so as to bring it within legislative competence.

According to correspondence between the governments in Cardiff and London, released under the Freedom of Information Act, the Welsh Government is of the view that the removal of the concurrent byelaw confirmation function of the Minister of the Crown is ‘consequential upon or incidental to’ other provisions in the Bill. For that reason, they considered the provisions to be within their legislative powers, and therefore did not see it necessary to seek the consent of the Secretary of State.

On the other hand, the Wales Office does not agree that the removal of the Secretary of State’s power is ‘merely consequential’. Therefore, on this view, the provisions required the consent of the Secretary of State. Of course, the former Secretary of State Cheryl Gillan could have just consented to the clauses, consequently avoiding a court case. From the perspective of the Assembly and the Welsh Government, it may be difficult to comprehend why she chose not to do so. If some point of public policy, as opposed to intergovernmental politics, is at stake, it has yet to have been made clear. It is a curiosity of the UK Government’s challenge to this Bill that they seem to act against the fundamental purpose of devolution, namely to bring democracy closer to the people of Wales. As I asked at the outset, why would the Secretary of State for Wales want a say in the making of byelaws about the cleanliness of tattoo parlours in Anglesey or the management of mortuaries in Monmouthshire?

Moreover, in a letter to Carwyn Jones on 1 May 2012, the former Secretary of State let it be known that her consent to clause 6 was conditional on clause 9 being amended so as to require her consent to use the power in that provision. However, she received no response from the Welsh Government. This suggests that she saw no point of principle at stake in relation to clause 6, which may have become a bargaining chip.

Some may suppose that the Welsh Government knowingly altered Minister of the Crown functions without consent to test the boundaries of the Government of Wales Act 2006. Even so, it is not clear that the Secretary of State would have created a general competence or precedent for the Assembly to alter Minister of the Crown functions if she had simply consented to these provisions of the Bill. The glimpse of intergovernmental politics we are given by this episode is worrying from a constitutional point of view.

If the judges find that Minister of the Crown functions have been changed, the question of whether the relevant clause is ‘incidental’ or ‘consequential’ will probably be determined by reference to the purpose of the provision. Though it is difficult to predict how the Court will respond, what it has said in the past would suggest the endorsement of a wider approach, viewing devolution as a renegotiation of the terms of the Union on the part of the sovereign devolved nations. In Martin and Miller v Lord Advocate [2010] the judges were split by three to two as to whether an Act of the Scottish Parliament was within the powers of the Parliament. The majority, holding that the Act was valid, decided that a broad-brush approach should be applied, meaning that the court should look at the general purpose of the legislative provision.

On the other hand, the minority took a literal approach. This means that, if the Court find the Byelaws clauses to be outside the Assembly’s powers, they would be unlikely to construe them as ‘incidental’ or ‘consequential’, because the fact that a provision may have a devolved purpose does not make it valid if it remains outside their competence for another reason. Lord Rodger in Martin and Miller commented that the adjectives ‘incidental’ and ‘consequential’ suggest the sort of minor modifications which are normally found in schedules because they raise no separate issue of principle. It may be difficult in the Byelaws case to argue that the removal of consent does not raise any issue of principle to which a Minister may object.

Meanwhile, a wider approach would see the provisions as merely incidental to, or consequential on, the more general aspects of the provision which are necessary to give effect to the devolved legislation. The pith and substance of the Byelaws Bill is to simplify and localise the process of making certain byelaws. On this basis the removal of confirmation would be viewed as incidental. Taking Lord Brown’s approach in Martin and Miller, given that the Assembly is empowered to regulate local government, it is difficult to see why the Assembly, when modifying devolved systems, should have to invoke Westminster’s help ‘to do no more than dot the i’s and cross the t’s of the necessary consequences’.

On this wider view of the purposes of the Government of Wales 2006, the Court would also recognise that the Assembly was created as a legislature in its own right, as happened in AXA General Insurance Limited and others v The Lord Advocate and others (2011) where the Supreme Court held that decisions as to how the Scottish Parliament exercises its law-making powers require no justification in law other than the will of the Parliament. Within the limits set by the Scotland Act 1998, Parliament is accountable to the electorate, not to the courts. It follows that the same principle should apply in relation to the Byelaws Bill. After all, last year, the people of Wales voted for the Assembly to have primary law-making powers over local government matters.

Though the challenge may seem trivial, it provides a chance to lay down authoritative principles as to how questions of legislative competence are to be determined in future. Questions regarding Secretary of State consent and whether something is ‘incidental’ or ‘consequential’ cannot keep going back and forth to the courts. However, as Lord Kerr said in Martin and Miller, it is impossible to devise a comprehensive charter which prescribes the limits of the legislature’s enacting power. That is, after all, the inevitable consequence of devolution. Whether a particular Act falls within legislative competence will normally depend on a consideration of the particular provisions of the enactment in question. Nonetheless, the establishment of some clear principles for the Assembly to work by when legislating, and for the court to apply, would be extremely helpful. This is particularly true given the complexity of the current legislative arrangements in Wales, perhaps reflected in the fact that, since the new devolution arrangements came into force last year, the Assembly is yet to legislate without reference to the UK Government.

From one perspective the legality or otherwise of the Byelaws Bill is a narrow point, a matter merely of process, whether the provisions are within legislative competence or not. However, from another perspective the questions of legality raised here are crucial. The Supreme Court’s decision, which we may hear before Christmas, is likely to tell us a great deal about how far we have travelled in Wales’ devolution journey.