This piece was originally posted on the UK Constitutional Law Group blog, and is reproduced here with permission and thanks.

At the end of July, we learned that the UK Attorney-General has referred the first Act of the National Assembly passed since the March 2011 referendum to the UK Supreme Court. There’s news coverage of this from the BBC here, and a good analysis from Toby Mason of BBC Wales here.  This is the first time that any devolved legislation has been referred to the Supreme Court before receiving royal assent; it is the first time the UK Government’s law officers have challenged the legal competence of devolved legislation; and it is the first time that legal challenges involving Welsh legislation have been brought.  Any one of those would make it a noteworthy event indeed.  To find all three of them in one place – coupled with a significant point of law – makes it a case of rare interest.  The latest information is that there will be a hearing in early October. This post will discuss what the case is about, how it comes before the court and what the constitutional political issues at stake are, as well as the black-letter legal ones.  It is a case of interest that goes far beyond Wales, because although there are significant differences between the Welsh arrangements and those for Scotland or Northern Ireland, the case also raises some rather broader questions about the legal working of devolution.

This is not the first time Wales has broken new ground in challenging how devolution works, of course.  Most notably, Wales was the first jurisdiction to refuse consent to Westminster legislation affecting a devolved function under the Sewel convention – aspects of the Police Reform and Social Responsibility Act 2011.  Perhaps the more provisional, evolutionary nature of the Welsh arrangements mean that it is more prone to test the legal aspects of its devolution arrangements than Scotland or Northern Ireland, where they are more clearly established.

The legal background

The bill that the Attorney General is challenging is the Local Government Byelaws (Wales) bill, which was passed by the National Assembly on 3 July 2012.  The Byelaws bill is a pretty dull piece of legislation.  Its main effect is to enable Welsh local authorities to make byelaws under a number of specified powers for places like public conveniences, sea-side promenades or private swimming pools, without requiring that these be ‘confirmed’ by an approving authority.  Up to now, and still in England, byelaws have to be made under specific statutory powers, with procedural requirements including local advertising.  They must then be approved by a confirming authority, historically the Home Secretary, before they can come into effect.  To secure that approval, it is usually necessary to use established model byelaws, or else to make a strong argument why something different is needed and why it is appropriate in a particular case.  Welsh byelaws would still need to be limited to specified purposes, be consulted on, and advertised in the local area; but many of them would not need approval by another level of government.

In the case of the Byelaw bill, the power to make byelaws under the various statutes involved – the Public Health Amendment Act 1907, the Public Health Act 1936, the Highways Act 1980 and more – was passed to the National Assembly by the ‘jumbo’ transfer of functions order in 1999.  These powers were passed unconditionally, and by virtue of paragraph 30 of Schedule 11 to the 2006 Act have now passed to the Welsh Government.  However, the power for local authorities to make byelaws, which is set out in section 236 of the Local Government Act 1972, provides that confirmation of byelaws is a matter for concurrent action by both to be the Assembly (meaning now the Welsh Ministers) and the Secretary of State.  Thus, to the extent that the Byelaws bill alters the way section 236 LGA 1972 works, it affects a function of the Secretary of State.

Schedule 7 to the Government of Wales Act 2006 provides that devolved legislation can only affect pre-commencement functions of UK ministers like the section 236 bye-law confirming power if it does so only incidentally or consequentially to its main purpose, or if the Secretary of State gives her consent.  Consent has not been given in this case.  In the Attorney General’s view, clauses 6 and 9 of the Byelaws bill therefore transgress on UK ministers’ powers, so are beyond the powers of the National Assembly.

Referring a bill to the Supreme Court

The Attorney General has never before used his power to refer a devolved bill to the UK Supreme Court, though he has a similar one under each of the devolution settlements (under section 33 of the Scotland Act 1998 and section 11 of the Northern Ireland Act 1998, as amended by sections 27-8 of and Schedule 7 to the Justice (Northern Ireland) Act 2002) .  This is therefore an unprecedented step, and takes us into unknown territory.  When issues have arisen with devolved legislation in the past, they have been resolved quietly behind the scenes – perhaps by amending the legislation, perhaps by adjusting the devolution settlement to ensure the bill is within competence.  As all devolved legislation needs a declaration whether it is within the legislative powers of the parliament involved from both the minister or other member responsible for the bill, and the presiding officer, it is highly unusual for a bill to reach this stage with any major question about its legal competence.

In this case, both the presiding officer and the Minister for Local Government and Communities stated that they considered the bill to be within the Assembly’s legislative competence.  The explanatory memorandum makes no reference to the issue about confirming powers at all, and indeed implies that confirmation was simply a matter for Welsh Ministers, with no obligation for them to act in conjunction with UK ones at all.

A reference means that the case goes straight to the Supreme Court, without any earlier hearing in the High Court or Court of Appeal.  In the Welsh case, the procedure is set out in Schedule 9 of the 2006 Act.  The procedure bears some resemblances to the procedure for an advisory opinion of the European Court of Justice, which is quite a novelty for lawyers from the UK, and has never been used before.  But the lawyers will need to work out what to do quite quickly, as a hearing is apparently due to start on 9 October.

Functions of Ministers of the Crown

It has been increasingly clear for some time that the protection of the position of Ministers of the Crown was likely to be a serious brake on the exercise of the National Assembly’s legislative powers under Part 4 of the 2006 Act.  Many executive functions were transferred to the National Assembly in 1999 (by what is known as the ‘jumbo’ transfer of functions order), and a few others have been since.  Those functions were then transferred to the Welsh Ministers when the 2006 Act came into effect (by paragraph 30 of Schedule 11 to the 2006 Act).  But there remain a good many residual UK functions, reflecting the history of administrative entanglement between England and Wales – and the defensiveness of some Whitehall departments about devolution.  Those arguments were re-fought when the 2006 Act was being framed, and one key safeguard was the block on legislation affecting functions of ‘ministers of the Crown’.

One of many problems with that safeguard is that no-one knows quite how far it reaches.   There is no list of functions of ministers of the Crown, and producing one would be a huge task that would inevitably produce mistakes.  But that history of administrative entanglement goes back a long way (remember: the Welsh Office was only created in 1964), and has a powerful effect.  And UK Departments have been keen to maintain control over important functions like planning for big energy projects or defence installations, as well as safeguarding water supplies, business regulation and the common law of England and Wales.  That has usually been done by express provision, rather than by relying on a general saving clause as here.

It is worth noting that the position for Wales is rather different from that for Scotland.  There, following an opinion of the Attorney General, the UK Government has accepted that it is within the power of the Scottish Parliament to legislate for matters that affect UK ministers, provided the legislation is within Holyrood’s legislative competence – i.e., that the legislation does not ‘relate to’ a reserved matter.  There is no general saving for UK ministerial functions, though there are rather fewer of them relating to devolved functions in Scotland.  This is documented in Devolution Guidance Note 15, which also emphasises the need for consultation before Holyrood legislates in ways that affect UK ministers.

It is also worth noting that a ‘reserved powers’ model of conferring legislative powers on the National Assembly would not solve this problem.  Nor would creating a separate Welsh legal jurisdiction (though that might have an effect on it).  The problem arises because of the relationship between UK executive functions and devolved legislative powers, not the scope of those powers.

The politics of this case

In some circumstances, constitutional litigation can happen more or less by accident.  Even years after legislation is passed, a private litigant can raise the question of whether the Act was in fact legally competent.  That does not appear to be the case here.  I understand that the Wales Office tried repeatedly to draw the Welsh Government’s attention to the problem, and to suggest what changes they needed for the Secretary of State to be able to give her consent (which she was willing in principle to do).  The Welsh Government failed to respond, in circumstances that suggest this cannot have been accident or oversight.  But legally speaking the Welsh Government’s position here is weak, if not hopeless; the legislation affects a function of a minister of the Crown, consent has not been given, therefore the legislation is beyond the Assembly’s powers.  The Welsh Government seems to be walking into a judgment that what would have been the Assembly’s first Act is void.   The only hope for its argument might be if it could show that the formal protection of the UK Minister’s confirming power had in fact fallen into disuse, but even if this can be proven it is hard to see how it helps given the clear position under statute.

Equally, this analysis means that the UK Attorney General had little choice but to refer the bill to the Supreme Court.  The legal position is quite clear.  If he failed to do so, he would have been in dereliction of his duty; he would, effectively, be conniving at the National Assembly passing legislation it had no power to pass.  His legal role means that not only does he have the power to make such a reference, but in these circumstances he has to do so.  Even if he did not, it would not solve the problem – the legal flaw in the legislation would remain, and (for example) any person aggrieved at his or her conviction under a bye-law made under the new system would be able to challenge their conviction.  In that sense, the power the Attorney General has (and his exercise of it) are ways of bringing matters to a head sooner rather than later, and his use of it is an appropriate response to pretty aggressive tactics from the Welsh Government.  The only surprise here is that the Attorney General waited until the last day he had to bring this challenge (there is a 28-day limit), rather than doing so promptly after the bill was passed.

Why might the Welsh Government have drafted and promoted legislation that was beyond the Assembly’s law-making power, and handled matters so as to invite such a legal challenge?  That is a question best directed at the First Minister or Counsel General, of course.  Two reasons suggest themselves why they might do so, though.

The first is that they think there is just a chance that the Supreme Court will find in their favour, and want to see how much leeway or support they can get from the court.  In the Axa case, Lord Hope – inaccurately, in my view – said obiter that the ‘essential nature of the legislatures created’ for Wales, Scotland and Northern Ireland were the same in each case (at paragraph 43).  That may have given them an (unjustified) degree of optimism in what the Court might say, given that these constraints do not apply under the Scotland or Northern Ireland settlements.  It would certainly look like an avenue worth exploring, even if the chance of success is limited.

The second is that they know they are going to lose, and want to use the Court’s judgment to underline to the wider public just how limited the new legislative powers of the National Assembly are.  There could be no more powerful sign of that than that the first, innocuous Act of the Assembly is in fact blocked.  After all, there are more contentious bills in the pipeline – notably the Human Tissue bill.  That in turn may serve a wider political purpose, of making it hard politically for the Secretary of State to refuse consent to legislation in future.  It may even secure some guidelines from the Court about how the Secretary of State should approach the giving or withholding of consent, rather than simply leave it to the Secretary of State’s untrammelled discretion.

In that context, it is worth looking at the forebears of the provision that legislation affecting ministers of the Crown needs consent.  Two spring readily to mind.  The Northern Ireland Act 1998 creates three sorts of legislative powers: ‘excepted’ and ‘reserved’ matters, which are beyond the Northern Ireland Assembly’s competence, and ‘transferred’ ones, which are the rest.  Reserved matters can be devolved by a relatively simple order, so they are candidates for future devolution (though that has not happened in practice), and they may also be the subject of devolved legislation with the Secretary of State’s consent.  In the early years of the Assembly, this power was used relatively often, mainly when criminal offences were being created in connection with devolved functions (something not needed under Part 4 of the 2006 Act; see section 108(5)).  With the devolution of justice and policing, the need for that seems to have diminished considerably.

The other model is the more general inspiration for the 2006 Act – the Scotland Act 1978.  That never came into effect, of course, but it provided for a ‘defined powers’ model of legislative devolution.  It also gave extensive powers to the Secretary of State for Scotland (part of the UK Government, not the devolved administration) to approve legislation passed by the Scottish Assembly before that legislation came into effect.  That would have turned the Secretary of State into a Viceroy in all but name.  Such powers would have been very problematic – had the 1978 Act ever come into effect, it would either have stopped devolution working, if used, or otherwise fallen into disuse.  The danger in Wales is that the power of the Secretary of State to consent to legislation affecting ministers of the Crown is sufficiently broad that, although in form it safeguards the legal functions of UK minsters, in practice it operates as a discretionary veto on what the National Assembly may do.

Conclusion: a bad place to be

The fundamental issue here is that the March 2011 referendum creates a strong public expectation that the National Assembly will have power to legislate for the twenty devolved ‘subject areas’ set out in Schedule 7.  Formal niceties about protecting UK ministers’ functions were no part of that.  Undermining the effective working of that model of devolution will risk de-legitimising that model of devolution, and raise questions about what should happen instead.  Given the strength of public support for devolution, that is a dangerous course for all involved.  Even if the Supreme Court’s decision about the Byelaws will does no more than confirm that the Act is beyond the Assembly’s powers for want of the Secretary of State’s consent, it will both increase political tensions between Cardiff and London, and make a significant step forward in relying on the judicial resolution of difficult points in the devolution arrangements.  There are serious reasons to doubt whether the constitutional framework of devolution as it presently operates can withstand that.

Alan Trench is honorary fellow at the University of Edinburgh, honorary senior research fellow at the Constitution Unit, University College London, and author of the blog Devolution Matters.

 Update (4th October 2012):

Since I wrote the post above, the Welsh Government has released a collection of papers and correspondence regarding the Byelaws bill and the court challenge.  They go back to September 2011 and show that the Welsh Government considers that the National Assembly has power to remove functions of ministers of the crown through its power to alter such functions when that is incidental to and or consequential on other, intra vires, provisions in Acts of the Assembly.  We will see what the Supreme Court makes of that line of reasoning.  As the removal was central rather than incidental to the statutory scheme in the bill, it is hard to see how the argument is likely to succeed.

The papers released also show that, although the Welsh Government was well aware of the UK Government’s view that the Assembly had no powers to legislate without the Secretary of State’s consent, it did not seek to make the Assembly aware of that problem.  Nor did it ask for consent from the Secretary of State, even when that was offered subject to limited amendments to the bill.

The documents released can be found on the Welsh Government’s website here, and I’ve written a more detailed post about it on Devolution Matters, here.