Thursday, 22 November 2012

Supreme Court gives green light to historic bill.

The good people of Wales voted in a referendum to give the Welsh Assembly more law making powers. It made sense to simplify the way bills became law, removing the need to first seek permission from the Westminster Parliament and associated red tape.

It was fitting therefore that the first bill passed by the Welsh Assembly following this referendum was the Local Government Byelaws (Wales) Bill, which made it easier for Councils and others to make byelaws, without the need to seek confirmation from any Welsh Minister. Again a sensible proposition....the removal of more red tape.

However, the then Welsh Secretary 'Sad' Cheryl Gillian decided that the bill exceeded the Welsh Assembly powers and refereed the bill to the Supreme Court. I posted about it at the time see: Sad Gillian wants to play byelaws.

On Wednesday the Supreme Court ruled that the Welsh Assembly had the legislative competence to enact the Bill. You can download the full transcript from the Supreme Court's website.
Hat tip: Betsan Powys, BBC Wales.

The following are extracts from the judgement, highlighting the key issues:

LORD NEUBERGER (with whom Lord Clarke, Lord Reed and Lord Carnwath agree)....

48. In my view, this point highlights the way in which the Bill is structured, and, more importantly for present purposes, it tends to support the argument advanced by the Counsel General, namely that the removal by the Bill of the Secretary of State’s power to confirm byelaws under section 236(11) is indeed “incidental to, or consequential on” one of the principal purposes of section 6 of the Bill, which is, as section 1 states, to remove the requirement for confirmation by the Welsh Ministers, as part of the overall streamlining and modernising of the way in which byelaws are made in Wales.

49. The answer to the question whether a particular provision in an enactment is “incidental to, or consequential on” another provision, obviously turns on the facts of the particular case. The answer may to some extent be a question of fact and degree, and it should turn on substance rather than form, although, of course, in any well drafted Bill, the substance will be reflected in the form, at least in relation to that sort of question......

52. Section 6 of the Bill plainly is intended to have the effect of removing the need for confirmation by the Welsh Ministers of any byelaw made under the scheduled enactments. That is a primary purpose of the Bill, as is clear from reading the provisions quoted above, both in itself and for the purpose of streamlining and modernising the making of byelaws.......

61. The Attorney General’s argument is that section 9 would “confer power” on the Welsh Ministers “by subordinate legislation to remove or modify … pre-commencement function[s] of a Minister of the Crown”. Accordingly, he argues, by virtue of section 108(6)(a) of, and paragraph 1(1) of Part 2 of Schedule 7 to, the 2006 Act, the section is outside the legislative competence of the Assembly.....

63. Although it is perfectly true that there are no express words in section 9 which limit its scope in this way, I am satisfied that it does have such a limited effect. That is because of the simple legal principle, identified by Lord Reed, embodied in the Latin maxim nemo dat quod non habet. Given that the jurisdiction of the Assembly is limited to removing, or delegating the power to remove, functions of Ministers of the Crown when the removal satisfies the requirements of paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act, the Assembly cannot confer a wider power on Welsh Ministers. Accordingly, the wide words of section 9 must be read as being circumscribed in their scope so as to render the section valid.

I suppose to be fair to 'Sad' Gillian MP the judgement does not say she was wrong in one sense, but confirmed 'the terms on which she was prepared to give her consent to Section 6 of the Bill' - to long as the bill did not confer onto Welsh Government Ministers additional powers outside the scope of the Welsh Assembly. Lord Neuberger says:

67. It should be added that, although this is a successful outcome for the Assembly and the Counsel General, it cannot be regarded as a setback in practical terms for the Secretary of State. Somewhat curiously, the conclusion I have reached as to the effect of section 9 is one which reflects the terms on which she was prepared to give her consent to Section 6 of the Bill.

Having said that, and in light of the Supreme Court judgement, you really do need to ask whether it was absolutely necessary to refer the matter to them in the first place. How much did this cost for starters, and the fact as David Jones, Welsh Secretary points out that..."it was entirely proper for the Attorney General to refer the Bill to the Supreme Court at that stage" does not make the decision to do so right or proper.

I find it ironic that the above judgement came out in the same week that David Cameron, Prime Minister promised a crackdown on judicial reviews of government decisions.

And finally we really need to question the purpose and function of the Welsh Secretary and associated expense -  is it a bureaucracy we can do without?

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