Byelaws Bill "within legislative competence of Welsh Assembly": Supreme Court

The first Bill to have been passed by the National Assembly for Wales under new powers was within its legislative competence, the Supreme Court has unanimously ruled.

The case, the first devolution reference to the Supreme Court, had been referred by the Attorney General for England and Wales, Dominic Grieve, before the Local Government Byelaws (Wales) Bill was due to receive Royal Assent.

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.

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 was whether sections 6 and 9 of the Bill were within the legislative competence of the assembly.

Under section 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.

Section 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.

In Local Government Byelaws (Wales) Bill - Reference by the Attorney General for England and Wales [2012] UKSC 53 the Supreme Court ruled in the Welsh Government’s favour, saying it had the requisite legislative competence.

Lord Neuberger said: “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….., both in itself and for the purpose of streamlining and modernising the making of byelaws.”

He added: “The removal of the Secretary of State’s confirmatory powers by the Bill in relation to the scheduled enactments would be incidental to, and consequential on, this primary purpose.”

Lord Neuberger said one of the streamlining and modernising purposes of the Bill would be undermined if the Secretary of State’s confirmatory function remained in respect of any of the scheduled enactments.

“There would be no point in removing the Welsh Ministers’ confirmatory function in relation to the scheduled enactments unless the Secretary of State’s concurrent function was also disposed of. Indeed, the notion that the Assembly would intend to remove the Welsh Ministers’ confirmatory function while retaining that of the Secretary of State is bizarre,” he suggested.

The judge added that the scheduled amendments concerned byelaws whose nature was such that it would be for the Welsh Ministers, rather than the Secretary of State, to confirm them. “This is because they are very much directed to local, small-scale (but important) issues.”

Lord Neuberger said that in the circumstances, given the purpose of section 6 and the purpose of the Bill, it would be “positively perverse” if the Secretary of State should retain the confirmatory function when the Welsh Ministers have disclaimed their confirmatory function.

In relation to section 9, the judge said this had a limited effect because the jurisdiction of the Assembly was limited to removing, or delegating the power to remove, functions of the Secretary of State where this would be incidental to, or consequential on, the purpose of removing the need for confirmation by the Welsh Ministers of any byelaw made under the scheduled enactments, and the Assembly could not therefore bestow wider powers than this on the Welsh Ministers.

Carwyn Jones, First Minister of Wales, said: “The Supreme Court’s judgment is confirmation that the Welsh Government's position was right.

“As part of our evidence to the Silk commission, we will be making a strong case for the Welsh devolution settlement to be reconstituted on a reserved powers basis. This would have the benefit of reducing the differences between the UK devolution settlements, and ensure that we are considerably less likely to have to appear before the Supreme Court in future.”

Counsel General for Wales, Theo Huckle QC said: “From the outset we were clear that the Bill’s primary purpose was to provide a new local procedure for local authorities in Wales to make byelaws for their areas.

“The requirement for approval of those byelaws by the Welsh Government or UK Government was, therefore, no longer appropriate.”

Huckle added that the Supreme Court ruling had established an important principle relating to the devolution settlement and justified its stance in refusing to accept that the Secretary of State should continue to have a role in local matters.

The Secretary of State for Wales, David Jones, said: "As Lord Hope stresses in his judgment, it was entirely proper for the Attorney General to refer the Bill to the Supreme Court at that stage. By doing so, this has removed uncertainty about the Assembly’s competence to enact the provisions before they come into force.

“This judgment will assist both the Welsh and UK Governments as to where the devolution boundary lies. In particular, it clarifies the extent to which the Welsh Ministers can exercise their powers to amend byelaw making procedures in the future."

The Welsh Secretary added: "The Government appreciates this clarification, as the referral was made to clarify the boundary of the Welsh devolution settlement, not to interfere with the policy objectives of the Welsh Government.

“The UK Government will continue to make every effort to ensure that the legislative arrangements work effectively. Any referrals to the Supreme Court should not be seen as hostile, but rather the appropriate mechanism of ensuring devolution works smoothly. I am committed to ensuring that and working with the Welsh Government in the future.”