Supreme Court to hear landmark case on Welsh Assembly powers next week

The Supreme Court will next week be asked to decide whether the first Bill to have been passed by the National Assembly for Wales under new powers was within its legislative competence.

Five judges – including the President of the Supreme Court, Lord Neuberger – will begin hearing the case on Tuesday (9 October).

The hearing, involving the first devolution reference to the court, is expected to last for two to three days.

The reference to the Supreme Court was made by the Attorney General for England and Wales, Dominic Grieve, before the Local Government Byelaws (Wales) Bill received Royal Assent.

The Bill was the first to be passed by the assembly since the provisions of Part 4 of the Government of Wales Act (GOWA) 2006 came into force on 5 May 2011.

Part 4 includes provisions giving the assembly primary legislative powers for the subject areas listed in Part 1 of Schedule 7 to GOWA.

These powers are subject to certain limitations set out in the schedule. These include a requirement that a provision of an Act of the assembly cannot remove or modify, or confer power by subordinate legislation to remove or modify, any pre-commencement function of a Minister of the Crown.

However, an exception to this limitation exists where the provision is “incidental to, or consequential on,” any other provision contained in the Act.

At issue in the Supreme Court case is whether clauses 6 and 9 of the Bill are within the legislative competence of the assembly.

The Welsh Government intended through the Bill to give effect to its proposals to simplify and localise procedures for making and enforcing local authority byelaws.

Under clause 6, byelaws made by Welsh local authorities in exercise of powers under any of the enactments listed in Part 1 of Schedule 1 of the Bill would not require confirmation (by a higher level of government).

This represents a change to the existing law. At present byelaws made under some of those enactments are subject to a concurrent power of confirmation held by the Welsh Ministers and the Secretary of State.

Clause 9 meanwhile confers a power on the Welsh Ministers to amend Part 1 of Schedule 1 to the Bill. This includes adding enactments to the list.

The Attorney General has therefore asked the Supreme Court to consider whether the two clauses in the Bill remove or modify a pre-commencement function of a Minister of the Crown.

If the answer to that in either case is ‘yes’, he also asked the court to consider whether the clauses are “incidental to, or consequential on” other provisions in the Bill.

The Attorney General for Northern Ireland is also seeking clarification of how “incidental to, or consequential on” should be interpreted in order to clarify the extent of legislative competence of the Northern Ireland Assembly in light of s. 6(3)(b) of the Northern Ireland Act 1998.