Supreme Court dictates pace of Welsh devolution

Lord Carnwath asking the Attorney General’s QC why it is so important to the UK Government to have the right to confirm byelaws relating to tattoo clinics in Swansea, and Lord Neuberger asking the Counsel General whether getting rid of a King or Queen would be ‘incidental’ to creating a Republic, are probably not familiar occurrences in the Supreme Court. However, Welsh byelaws and the meaning of the word ‘incidental’ were debated at length in the UK’s highest court last week.

The Local Government (Byelaws) (Wales) Bill was passed by the National Assembly for Wales in July, but the Attorney General for England and Wales referred it to the Supreme Court, to decide whether it is within the Assembly’s legislative competence. The Bill streamlines the procedure for making certain local government byelaws by removing the requirement for confirmation by Welsh Ministers. The UK Government argued before five judges last week, that in doing so, the Assembly also removed the Secretary of State’s function of confirming Welsh byelaws. Under Schedule 7 to the Government of Wales Act 2006, provisions of Assembly Acts cannot remove functions of a Minister of the Crown which existed before Part 4 of the 2006 Act came into force. That is, it can’t unless the Secretary of State consents, or if the provisions are incidental to, or consequential on, any other provision contained in the Act.

By virtue of the 1999 Transfer of Functions Order, the UK Government initially claimed that the power to confirm byelaws in Wales was exercised by the Welsh Ministers concurrently with the Secretary of State. However, the QC for the Attorney General for England and Wales, Jonathan Swift, admitted unexpectedly last Tuesday morning that all of the byelaw confirming powers listed in Schedule 1 to the Bill, were in fact all wholly transferred to the Welsh Ministers, apart from three. Why, then did the Bill reach the highest court in the UK, especially given that the powers in question have never actually been used by the Secretary of State?

The UK Government accepted that the byelaws in question were often confined to local authority matters, and in those cases considered it perfectly reasonable for the only Welsh Ministers to consent. However, overlooking the politics of the issue, the UK Government contended, as a matter of legality, that the Assembly should only pass laws which are firmly within the boundaries of the Government of Wales Act 2006. In their opinion, as the 1999 Transfer of Functions Order provided the Welsh Ministers and Secretary of State with concurrent powers, the role of both the Welsh Ministers and the Secretary of State must be just as important as the other. The UK Government claimed that both governments could work together, in relation to the concurrent functions, to decide the most appropriate authority for confirming byelaws, according to the circumstances. Why such an agreement could not have been reached before reference to the Supreme Court was surprisingly not addressed by the judges last week.

However, it was clear from last week’s proceedings that it is unclear what is actually meant by ‘concurrent’ powers. Does it mean either/or authority, or both authorities together? It was also unclear why such powers were included in the 1999 Transfer of Functions Order in the first place. It may have been for reasons of ‘workload’ or ‘pragmatism,’ as the Welsh Counsel General suggested, or, as Jonathan Swift argued, because Parliament anticipated situations where the byelaws in question affected non-devolved matters.

In those sort of situations, the UK Government considered it appropriate to secure the Secretary of State’s consent. It seems unlikely though that those drafting the 1999 Transfer of Functions Order anticipated that it would have the influence it has today, or that it would be debated at length in the UK Supreme Court for that matter. In fact, the Welsh Government argued that, considering the way devolution has changed since the 1999 Order, reliance on it may not longer be appropriate in today’s political context. However, the outcome of the case will depend on whether or not the Supreme Court will endorse this change, or whether it will give the statute a narrow reading. Lord Hope hinted last Tuesday that it is “statute not principles which tell you what to do”.

Both the Welsh Government and the Assembly Commission, on the other hand, were firmly of the view that the Bill in its current form is within the powers of Government of Wales Act 2006. Much to the perplexity of the judges, both the Welsh Government and the Assembly Commission made submissions to the court as to the legality of the Bill, and both parties introduced a different position, despite being in agreement that the main purpose of the Bill was to streamline the procedure for making certain local government byelaws in Wales.

The Assembly Commission maintained that the provisions relating to the confirmation of byelaws in Wales did not affect any pre-commencement functions of a Minister of the Crown. They considered all the byelaw confirming powers listed in Schedule 1 to the Bill to be exercised by the Welsh Ministers only. For that reason, they did not view the provisions as needing to be saved by any of the exceptions to the restrictions in Schedule 7 to the Government of Wales Act 2006.

The Assembly Commission concluded that if the court found that the disputed provisions affected Minister of the Crown functions, those provisions should be construed as ‘incidental to’ or ‘consequential on’ the main provisions of the Bill. They also advocated that, under section 154 of the Government of Wales Act 2006, the provisions of the Byelaws Bill should be read as narrowly as required for the Bill to be within competence.

In contrast, the Welsh Government’s Counsel General, Theo Huckle, recognised that in some cases the Bill removed Minister of the Crown functions. However, he claimed that the removal of the Secretary of State’s consent was incidental to the main purpose of the Bill, which was to simplify the procedure of making byelaws by removing the requirement of confirmation by the Welsh Ministers, and was therefore within the Assembly’s legislative competence. For this reason, the Welsh Government considered the provisions to be saved by the exceptions to the restrictions in Schedule 7 to the Government of Wales Act 2006.

Whether the removal of the Secretary of State’s consent is ‘incidental to’, or ‘consequential on’, the main purpose of the Bill is now a matter for the judges.

The meaning and extent of ‘incidental’ was debated at length in the courtroom. For example, Lord Carnwath mused whether the removal of the Secretary of State’s confirmation function may have been a ‘natural consequence’ of getting rid of the Welsh Ministers’ functions. Whereas, Lord Hope implied that placing amendments in Schedules to the Bill, rather than on the face of the Bill, may suggest that the provisions are incidental to the main provisions of the Bill. On this view, by placing the removal of the Secretary of State’s confirmation in Schedule 2 to the Bill, the Welsh Government may have made it clear that it was simply incidental to removing the requirement of confirmation by Welsh Ministers.

Lord Hope commended the Welsh Government on a “very well drafted” Bill. He described the Welsh draftsmen as “using their own lines, but applying the same standards” as Parliamentary draftsmen. This comment has the potential to very significant, not least because initial press reports suggested that the Bill was so appallingly drafted that the Secretary of State for Wales was simply keen to teach the Welsh draftsmen a lesson.

However, the judges seemed perplexed as to why both the Welsh Government and the Assembly Commission were appearing in court. It was also clear from the courtroom gallery, that there remains a grey cloud surrounding the devolution system in Wales. The fact that ‘the story of devolution’, as the Counsel General described it, had to be re-told demonstrates that even the UK’s best legal minds in the country are yet to have a complete grasp of the Government of Wales Act 2006. This may signal that it is time to have a Welsh representative on the Supreme Court.

It remains to be seen how important this judgment will be in constitutional terms. As Baroness Hale said, in her keynote speech at the Legal Wales Conference in Llandudno last Friday, to many, “it may seem like a storm in a teacup”, but it is not simply a technicality for those involved.

For the Welsh Government, this case was about demonstrating how far devolution has come in practice. However, in a political context, it could be argued they used a substantively trivial Bill to test the boundaries of the Government of Wales Act 2006. For the UK Government, on the other hand, this case was about the rigorous policing of those boundaries. Given that the policy substance of the UK Government’s case was even more trivial than initially anticipated, it is difficult to exclude the possibility that this challenge was simply its attempt to knock down the first Assembly Bill.

Moreover, as the court proceedings were coming to a close in London last Wednesday afternoon, it was announced that the Wales Office had referred the latest Assembly Bill to the Attorney General for England and Wales. The Attorney General has 28 days to decide whether or not to refer the National Assembly for Wales (Official Languages) (Wales) Bill to the Supreme Court. The Bill makes provision about the use of the English and Welsh languages in the Assembly’s proceedings and in the discharge of the functions of the Assembly Commission.

The Wales Office’s referral was made on the premise that the Bill amends the Government of Wales Act 2006 to make Welsh and English the official languages of the Assembly. The Assembly has legislative competence to legislate in relation to the Welsh language, but not, according to the Wales Office, in relation to the English language. In this case, the position of the Assembly Commission is similar to that of the Counsel General in the Byelaws Case, that the reference to the English language is ‘incidental’ to the provision on the Welsh language.

It is unlikely that the Attorney General will decide the legality of the Official Languages Bill before the judges come to a decision in Byelaws Bill case. Therefore the creation of Welsh law is likely to be delayed even further. Whether this is down to poor drafting, overstepping boundaries, overly rigorous policing of those boundaries or simply intergovernmental politics is yet to be decided. However far devolution has travelled since 1999, the pace and direction of the next steps in the journey are now in the hands of the Supreme Court.