Stand-offs between Wales and Whitehall can be prevented

The journey so far of Pontypridd AM Mick Antoniw’s asbestos Bill through the Senedd highlights a flaw in the procedure for deciding whether Welsh legislation is within the Assembly’s competence. As Wales becomes accustomed to having competence discussions and disputes with Whitehall and the Wales Office, it is vital that efficient means of solving these problems are in place. Wales should follow the constitutional precedents of such countries as Austria and Belgium of having competence questions determined before a Bill is passed. Early referral is a much preferable to either having the Assembly Act challenged when passed or even worst after it has force of law.

Questions as to the legality of Mike Antoniw’s Recovery of Medical Costs for Asbestos Diseases (Wales) Bill were raised from the outset of the Bill’s introduction. However, it would only be after the Bill is passed by the Assembly that the Supreme Court could be asked to look at the question. The same scenario presented itself with two Welsh Government Bills: the Human Transplantation Bill and more recently with the proposed emergency Bill, the Agricultural Sector (Wales) Bill. Both raised competence issues.

This shows that questions of disputed competence can cover all types of Bills and is already happening. It is considered that the current provisions in the Government of Wales Act 2006 (GOWA 2006) – for referral to the Supreme Court of an Assembly Act before the Bill has legal force – happens  too late in the law making process. To be really preventative, an alternative or a second referral should be permitted at the very beginning of the Bill’s scrutiny. This would enable competence questions raised at the outset about the legality of the whole Bill – or of its main provisions – to be considered by the Supreme Court at an early stage.

The two referrals would be different in their nature. The proposed new early referral would consider whether the Bill or its lead provisions are within the Assembly’s competence to ensure that time spent on consideration of the Bill is not wasted. Time would not be wasted scrutinising and amending a Bill which might ultimately be determined to be ultra-vires.

The initial procedure would be optional and not all Bills would have to be referred. The only real risk in this is the possible delay caused by the referral itself. Experience has shown that the sole Supreme Court referral so far took 4 months to be resolved. This is much a shorter delay than the 10 months to three years it took to have a Legislative Competence Order made before the 2011 referendum.

The initial referral would also limit the scope of any referral after the Bill is passed. A second referral would only be relevant for contentious amendments voted during the passing of the Bill.

There are several problems with the current referral procedures for Welsh Bills in the Government of Wales Act. Such problems fall into two categories: firstly who can put the question before the Court and secondly when the question can be raised.

Under the current procedure set out in Section 112 of the Act, questions relating to the competence of the Assembly can only be raised in the Supreme Court within four weeks after a Welsh Bill has been passed by the Assembly. Then it is only for the Counsel General for Wales and for the UK Attorney General to raise such a question. At no stage has the Assembly’s Presiding Officer such a right to refer a Welsh Bill to the Supreme Court. This is so even though the Presiding Officer has to issue a statement at the introduction of each Bill that the Bill would be within the Assembly’s competence.

Once a Welsh Bill has become an Act, the Assembly’s legislative competence to make the Act is again open to challenge, this time as a devolution issue under Schedule 9 to Government of Wales Act. It is in this context that the Supreme Court has ruled on Acts of the Scottish Parliament where a similar procedure applies.

Initial competence questions are not purely theoretical. An example of this was shown by the Presiding Officer’s letter to the Constitutional and Legislative Affairs Committee and to the Health and Social Care Committee in relation to the Asbestos Bill. She explained that her decision under the Government of Wales Act section 110(3) to rule that the Bill was within competence was not a “straight forward” decision but rather “finely balanced”. She explained that she had received “credible arguments” that a number of the Bill’s sections “may not be within competence”. (Letter Annexe to Stage 1 Constitutional and Legislative Affairs Committee).

A Briefing Note from the Presiding Officer dated July 2013 demonstrates another competence discussion in relation to the proposed emergency Agricultural Sector (Wales) Bill. The Presiding Officer explained that in January 2013 the Assembly refused to agree to a Legislative Consent Motion which contained powers in a UK Bill to abolish the Agricultural Wages Board in Wales. She explained that the “Motion was tabled because the Welsh Government took the view then, as it does now, that this is a subject within the legislative competence of the Assembly”.

The UK Government ignored the Assembly’s refusal to give consent. It took the view that the setting of wages and conditions of agricultural workers was not devolved. In her Briefing Note Rosemary Butler highlighted the statement of the First Minister to the Constitutional and Legislative Affairs Committee on 22 April 2013 that if the Bill does proceed, the only way of resolving the different views taken by the UK Welsh Governments as to the Assembly’s competence is by a reference to the Supreme Court after the Bill is passed by the Assembly. The Presiding Officer emphasised that such a reference would delay the coming into force of the Bill “for a period that cannot be predicted”. In the end she decided the Bill was within competence and the emergency Bill was passed on 17 July 2013. As predicted, within a matter of weeks the Bill was referred to the Supreme Court by the Attorney General for England and Wales, Dominic Grieve QC (see here).

In early June the Assembly Business Committee agreed to postpone the Stage 3 debate on the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (until a later time”, on request by Mick Antoniw for “technical reasons”.

As can be seen by these examples, questions of the Assembly’s competence are real and have considerable repercussions. They can create precedents about interpretations of the scope of the Assembly’s devolved powers and even beyond Wales as a guide to the interpretation of the extent of the legislative powers in the Scotland and Northern Ireland Acts. This is particularly the case with the emergency Bill where the Presiding Officer summarised the wider issues as follows:

“If agricultural terms and conditions of employment are said to be included under the subject ‘Agriculture’, does that mean that terms and conditions of employment throughout the devolved sector in Wales does come within the Assembly’s competence when ‘employment rights and duties’ are reserved from the competence of the Scottish Parliament?”

In relation to the Asbestos Bill the issues are whether the Bill relates closely enough to health and health services, or whether it mainly relates to insurance – a stated exception under Heading 4 – or taxation which is not listed as a devolved subject. Then if the Bill dealt with insurance could this be an incidental provision to health and health services for the purpose of Part 3 of Schedule 7 to the 2006 Act which would mean that it is within the Assembly’s competence?

These serious arguments as to whether specific Bills fall within or outside the Assembly’s legislative competence, demonstrate the complexity of the assessment of the Assembly’s powers. Given the intricacies of the Schedule 7 powers, particularly with the general exceptions in Part 2 (plus the exceptions to these exceptions in Part 3 of the Schedule), the competence decisions are often of a subjective nature. As such they can lead to disputes between the UK Government, the Welsh government, the Assembly, the Attorney General and even outside bodies (such as the Association of British Insurers in relation to the Asbestos Bill) each claiming that a particular section of a Bill is within the devolved legislature’s competence or not. Only the Supreme Court can settle such arguments.

Another problem arising from the procedure lies in the fact that at no time can the Assembly’s Presiding Officer invoke the jurisdiction of the Supreme Court to resolve uncertainties about the Assembly’s competence. This can put her in a very difficult situation as she has no way of ascertaining whether her interpretation of the competence is correct.

In addition, current Standing Orders do not seem to allow the Presiding Officer to refer competence issues of a proposed Bill to a Committee prior to her decision as to whether a Bill can be introduced.

In the absence of such a mechanism, the Presiding Officer first certified that the Asbestos Bill was within competence. In her subsequent letter to the Constitutional and Legislative Affairs Committee, she  explained the basis on which she  had made this decision. However, she also stated that she considered it appropriate to bring certain issues relating to competence to the attention of the Committees “so that they can decide whether or not to probe these issues further as part of the scrutiny process”.

The Health and Social Care Committee found it difficult to be able to comment on her decision as she had already exercised her power to certify the Bill. As one of its members, Mark Drakeford, put it:

“… what I think we are doing … is not trying to put ourselves in the Presiding Officer’s position – she has the legal authority to certify or not to certify – but collecting some additional evidence by exploring some of these issues with witnesses, which the Presiding Officer will then be able to read and to reflect upon”.

The problem was that the Presiding Officer had already exercised her power. She was ‘functus officio’ meaning that she had performed her function and that she could not change her decision, because she does not have such a power. The committee’s consideration therefore amounts to collecting evidence for the Attorney General and the Counsel General to decide whether or not they will refer the Bill to the Supreme Court – if the Bill is passed by the Assembly.

It is laudable of the Presiding Officer to have explained her dilemma and to invite further evidence in one case. However, it is regrettable that with the present Standing Order provisions, this line of scrutiny comes after the competence statement has already been issued. This also puts the Committees in a difficult position.

The preferable course of action would have been to have the Presiding Officer refer the Bill to the Supreme Court and not to a Committee. Less preferable, but helpful, would have been a procedure enabling the referral of the question to a Committee before the Presiding Officer made her competence statement. This could have been a form of pre-legislative scrutiny on competence only.

Delaying a Bill for four months to ensure its legality is a small price to pay to ensure that the laws made in Wales are robust and that they will not be sanctioned by courts at a later stage. However, in the absence of an amendment to the Government of Wales Act to enable the Presiding Officer to refer proposed Bills to the Supreme Court, Standing Orders could be amended to allow her to refer competence questions to a scrutiny Committee.  This would only make sense if she could do it before she issues her competence statement and before the Bill is formally introduced.