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Reference by the Attorney General

The Government of Wales Act 2006 devolved primary legislative competence in certain areas to the National Assembly for Wales. The Local Government Byelaws (Wales) Bill 2012 was the first Bill to be enacted by the Assembly under these powers, with aim of simplifying procedures for making local authority byelaws. The Attorney General referred the Bill to the Supreme Court to determine whether clauses 6 and 9 were within the legislative competence of the Assembly, as clause 6 intended to remove the Secretary of State’s role in confirming byelaws made under specific enactments, and clause 9 would empower the Welsh Ministers to add to the scheduled enactments.

The Supreme Court unanimously declared that the Assembly had the legislative competence to enact clauses 6 and 9 of the Bill. Clause 6’s removal of the Secretary of State’s confirmatory powers was incidental to the primary purpose of removing the need for confirmation of byelaws by Welsh Ministers. Also, the confirmatory power was only given to the Secretary of State if no other statute confers the function on any other body, which supports the notion that it was not an important function. Clause 9 was held to have a limited effect because the jurisdiction of the Assembly was limited to delegating the power to remove functions of the Secretary of State.

Guidance on rules and practice directions for references were also issued, with the Court stating that the reference should not have been served on the Assembly. The appropriate person to represent the public interest in resisting such a challenge was the Counsel General.

For judgment, please download: [2012] UKSC 53
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII