Supreme Court points direction for devolution

An event of considerable constitutional significance took place in the Supreme Court recently. It may have passed largely unnoticed outside Wales (and, to some extent, within Wales), but its implications for the law in Wales and England, as well as for the rest of the UK, should not be ignored.

In 2011, following a referendum, the National Assembly for Wales acquired the power to make primary legislation. Earlier this year it passed its first ever Bill, which has now become the Local Government Byelaws (Wales) Act 2012. The subject matter of the Act may be of limited interest outside of Welsh local government circles, but its journey into law was considerably more dramatic.

Debating devolution’s next steps   Tomorrow: David Melding, Deputy Presiding Officer in the National Assembly, asks whether Unionism and Nationalism can come together to provide a strong narrative for a federal Britain.

The source of the Assembly’s law-making power is the Government of Wales Act 2006, which lists the subject-areas in relation to which the Assembly can legislate. These include health, education, transport and, crucially in this case, local government. Local authority byelaws fit squarely within the area of local government, so the Assembly is able to pass laws about them. There are exceptions from this competence, but in this case none of the exceptions were relevant. The provisions of the Bill established a new, streamlined procedure for local authorities in Wales to make certain kinds of byelaws for their areas, and it removed the requirement for such byelaws to be confirmed by the Welsh Government before they could take effect.

It should be noted, however, that although the new byelaw-making procedures were simplified, and the ministerial confirmation requirement removed, the Bill also introduced additional requirements to increase the democratic underpinning of proposed local laws, such as requirements as to pre-publication online and otherwise in the affected community, before laws may be passed by the relevant local authority It was an important part of the policy behind the Bill to emphasise local accountability for local laws. For all of these reasons, the provisions would seem to be well within the Assembly’s powers and that was never really in issue.

However, the Government of Wales Act is more complicated than that. It also contains a number of general or ‘blanket’ restrictions on what Assembly legislation can do. One of these restrictions prevents the Assembly from removing or modifying any powers or duties of UK Ministers (‘Ministers of the Crown’) that pre-date the Government of Wales Act, save in the circumstances dealt with below.

The Bill proposed to remove the Secretary of State’s power to confirm certain kinds of byelaw. This Secretary of State power did, technically, still exist in respect of some byelaws made by Welsh local authorities, because of the way executive functions were transferred to the devolved government in 1999. In reality, though, since devolution the Welsh Government had always confirmed byelaws in Wales, not the Secretary of State.

That was important because the Government of Wales Act provides that an Assembly Act can remove a UK Ministerial function where either (a) the Secretary of State consents, or (b) the removal is “incidental to or consequential on” some other provision in the Assembly Act.

The then Secretary of State for Wales declined to consent to the Bill unless certain amendments were made to it. The Welsh Government had to decide whether the Bill would be lawful without her consent. We concluded that the Bill would be competent because the new local procedure for making byelaws made the confirmation functions of both the Welsh Ministers and the Secretary of State unnecessary. Consequently, removing those functions would be incidental to or consequential on  that new procedure.

The Attorney General for England and Wales, on behalf of the UK Government, disagreed, and referred the Bill to the Supreme Court for adjudication. I appeared in the proceedings for the Welsh Government. The Assembly Commission (for the Assembly itself) also participated, and the Attorney General for Northern Ireland intervened to support our arguments.

This was the first such Reference to be heard. Never before has a dispute between two administrations gone straight to the Supreme Court to decide whether a piece of primary devolved legislation could stand. Supreme Court Justice Lady Hale (who did not sit on the Byelaws case) recognised the significance of the case at last year’s Legal Wales Conference:

“It comes before the Court, not in a concrete case, but as pure constitutional review along continental lines. This is, as far as I know, the first case in which this has happened. We are not used to deciding cases in the abstract, without reference to a particular set of facts.

The important point is that, as long as they keep within the express limits of their powers, the devolved Parliaments are to be respected as democratically elected legislatures and are not to be treated like ordinary public authorities. The United Kingdom has indeed become a federal state with a Constitution regulating the relationships between the federal centre and the component parts.”

In the event, after two days of legal argument the five Supreme Court Justices unanimously rejected the Attorney General’s challenge and held that the Byelaws Bill was within the Assembly’s competence. In doing so it has given some guidance on the interpretation of constitutional statutes such as the Government of Wales Act as well as more specific guidance on the interpretation of the general restriction. The Welsh Government continues to analyse the judgment and, no doubt, the same is happening at the other end of the M4.

The Byelaws Act has now received Royal Assent, but questions remain about its somewhat tortuous journey into law. Is the Government of Wales Act 2006 simply too complicated and uncertain in its effect to provide a coherent, stable and workable devolution settlement? In this case, it took five Supreme Court Justices, the Law Officers of England, Wales and Northern Ireland, several of the UK’s leading constitutional lawyers and a great many officials across three Governments to decide it was lawful to make minor changes to the way Welsh local councils deal with things like dog-fouling and loitering in public lavatories.

Nor is it likely to be the last time a Welsh Bill is referred to the Supreme Court. The judgment helps clarify the interpretation of the ‘incidental or consequential’ exception, but that is only one small part of the Government of Wales Act. Much of what the Assembly can and cannot do remains untested.  It is inevitable that as Wales and Westminster go about their business there will be disputes about the boundaries of their respective areas of responsibility; and as every lawyer should know, if you never go to court to test the boundaries you cannot be looking after your clients’ various interests properly.

The Welsh devolution settlement is currently under review by the Silk Commission. The First Minister has already announced that the Welsh Government will argue for a new ‘reserved powers’ model of devolution for Wales, based on the Scottish model. Put simply, the Assembly currently has a list of subjects it can legislate about (subject to various further exceptions and restrictions), but the Scottish Parliament can legislate about any matter except those subjects that are expressly reserved for Westminster. The difference appears subtle, but is vitally important.

One of the problems with the Welsh settlement is the number of subjects that are simply not mentioned at all. Are those subjects devolved, reserved, or somewhere in between? There is no clear answer. The reserved powers model deals with this more neatly. Everything is devolved unless it is listed among the reservations, and while the list of reservations in the Scotland Act 1998 is long, overall the position is far more coherent.

So a new Government of Wales Act, reserving matters to the UK Parliament where necessary, and devolving the rest, would certainly be an improvement.  However, any improvement in clarity would immediately be undermined if the new scheme contained the same blanket restriction protecting the powers of UK Ministers. There are simply so many of these powers, scattered so widely across so many subjects, that the restriction has the potential to become a real stumbling block for even the simplest Assembly legislation. As the Byelaws case shows, this can be so even with entirely local laws on devolved matters. This is not a new issue. In 2009 the authoritative All-Wales Convention concluded:

“The problem with this General Restriction is that it seems to introduce an element of uncertainty into the scope of the National Assembly for Wales’s law-making powers. There is no composite list of relevant Minister of the Crown functions, therefore how can there be clarity on the extent of the National Assembly for Wales’s law-making powers…?”

Devolution is now the settled will of the people of Wales and the Assembly is their democratically elected legislature. The Welsh people have voted in a referendum to give it primary law making powers and it should surely be able to legislate within its area of authority without having to ask members of the UK Government for permission. The Scottish Parliament is not restricted in this way, and nor is the Northern Ireland Assembly. Whatever the reasons for the blanket restriction in the early days of devolution, that justification is surely waning in the context of primary law making responsibility, and as Scotland shows, it is not needed in a reserved powers devolution settlement.

In future Minister of the Crown functions within the Assembly’s devolved legislative competence should be discharged by the Welsh Ministers. If it is necessary to preserve particular UK Ministerial powers they should be covered by clear reservations. Otherwise they will only serve to trip up the Assembly and clog up the Supreme Court.

Meanwhile, both governments have a responsibility to make the current settlement work effectively for Wales and the UK as a whole. The Byelaws case was an important step but we think that the full ramifications of the judgment are yet to be fully appreciated.