The third week of November was a momentous week in the history of Wales. On the Monday the Silk Commission published a report on the first phase of its inquiry, which reviewed the case for devolution of fiscal powers to the National Assembly for Wales. The report recommended that certain tax-raising powers (including the variation of income tax should such a proposal be accepted in a referendum) should be devolved to Wales. The Silk Commission has now begun the second phase of its inquiry which is looking at the current devolution settlement and whether (and if so, how) it can be improved. The Law Society’s Wales committee is working on the Society’s response to the Silk Commission’s call for evidence.
On the Wednesday, in Local Government Byelaws (Wales) Bill 2012 - Reference by the Attorney General for England and Wales  UKSC 53 the Supreme Court declared that the first bill to have completed its legislative progress through the National Assembly was within the assembly’s legislative competence. The bill can now proceed to obtain royal assent.
The Supreme Court decision
The main purpose of the bill is to reform ‘procedures for making byelaws in Wales, including removing a requirement for confirmation of byelaws by the Welsh ministers’ - section 1 (this is the correct terminology as Welsh bills are divided into sections instead of clauses). The power to confirm local government byelaws in Wales is exercisable by Welsh ministers concurrently with the secretary of state for Wales. Since the bill affected the powers of the secretary of state for Wales, Welsh ministers sought her consent to two sections of the bill. She was prepared to consent to section 6 which, with part 1 schedule 1, lists the enactments in respect of which byelaws would no longer require confirmation.
However, she was not prepared to consent to section 9, which empowers Welsh ministers (without reference to her) to add to or subtract from the list so she withheld her consent to both sections. The assembly passed the bill anyway which prompted her to refer the matter to the attorney general who, in turn, referred it to the Supreme Court to determine whether the bill was lawful.
Section 6 removes the powers of Welsh ministers and the secretary of state to confirm byelaws (which she and her predecessors had never exercised in connection with these enactments) and section 9 enables Welsh ministers to remove more confirmatory powers. Counsel for the attorney general argued that section 9 conferred power on Welsh minsters to use subordinate legislation to remove or modify powers of a minister of the Crown and was thus unlawful.
The counsel general argued that this power was held concurrently with Welsh ministers and since the bill removed the requirement that Welsh ministers confirmed proposed byelaws, the removal of the confirmatory power from the secretary of state was incidental to or consequential upon the removal of the same power from Welsh ministers and was thus lawful under the Government of Wales Act 2006 (GoWA 2006) schedule 7 part 3 paragraph 6(1)(b).
This states that an assembly act is not prevented from providing that subordinate legislation may remove a function from a minister of the Crown if that provision is incidental to or consequential on any other provision contained in that Assembly Act. The counsel general’s argument persuaded all five Supreme Court justices who heard the case.
Distinct Welsh law
Once the bill receives royal assent the sum of primary legislation passed by the assembly will rise to 24:22 Assembly Measures and 2 Assembly Acts. That’s not much law, but it’s a start - and there are also thousands of statutory instruments which apply to Wales but not to England. These laws which assembly and Welsh ministers have made are only part of the body of distinct Welsh laws: some statutes passed by the UK parliament (and many of its statutory instruments too) apply only to Wales, either because that was the original intention or because Westminster has repealed those statutes for England but they still apply to Wales.
The divergence of the law in Wales from the law in England arises from the legislative activity of Westminster as well as the legislative activity (or inertia) of Cardiff Bay. So the body of distinct Welsh law consists of much more than the tiny amount of primary legislation passed by the assembly. Nevertheless, it is a considerable (and symbolic) achievement by Theodore Huckle QC, the counsel general, and his team to defeat the challenge to the legality of this bill. Once again, David saw off the challenge of Goliath.
I mention this because the primary legislation enacted by the assembly, if valid, is equal to UK statute law. Subject to the provisions of GoWA 2006 part 4, an Assembly Act ‘may make any provision that could be made by an Act of Parliament’ - GoWA 2006 section 108(1). Whether one likes it or not, whether one approves of devolution or not, whether one likes the legislation or its legislators or not, this is the law. And those who respect the rule of law should respect this legislation too.
Sadly, during the year and a half in which the assembly has been able to pass primary legislation without requiring the prior permission of the UK parliament to do so, only two bills have completed their legislative passage through the assembly and both have been referred by the secretary of state for Wales to the attorney general. He referred the first to the Supreme Court but not the second (the National Assembly for Wales (Official Languages) Act 2012). This record suggests a lack of respect from the UK government towards the assembly’s legislation which undermines Welsh devolution.
The position in Scotland
The Scotland Act 1998 section 33 enables the lord advocate to refer Scottish bills to the Supreme Court before they receive royal assent if he thinks that the Scottish parliament has exceeded its legislative competence. This power has not been exercised in relation to any of the 191 acts passed by the parliament in its 13½-year history. Why? In Scotland, a bill is outside the parliament’s legislative competence if one of its provisions relates to a matter reserved to Westminster by the Scotland Act 1998 schedule 5. Thus the Scottish parliament has power to legislate unless the particular matter is reserved to the UK. Since the Scotland Act 1998 schedule 5 lists the provisions which are reserved to Westminster, it is simple to avoid them.
But for Wales the picture is less clear. Two legislatures can pass primary legislation affecting Wales - Westminster and Cardiff Bay. Subject to the primacy of EC law if it conflicts with UK law and the exceptions developed by the common law, Westminster’s legislative competence is unlimited as a result of the doctrine of the sovereignty of parliament. But the assembly only has legislative competence in 20 subjects which are listed in GoWA 2006 schedule 7 and is only competent to legislate within those 20 subjects if the proposed legislative provisions fall within GoWA 2006 section 108(4) or section 108(5) and do not infringe GoWA 2006 section 108(6).
As Lord Hope observed of the devolution settlement for Wales in the Supreme Court case, ‘This is a more cautious transfer of executive power than that which was thought appropriate for Scotland. Not surprisingly, the question where the balance has been struck between the functions of the Welsh ministers on the one hand and the ministers of the Crown on the other is a sensitive one’.
Given the complications and uncertainty produced by the current devolution settlement for Wales exposed by this case it is likely that there will be future challenges by the attorney general to the lawfulness of Welsh bills. In the wake of this failed challenge and the consequent wasted time and public money, no wonder the first minister has stated that when it gives evidence to the Silk Commission in the second phase of its work his government will argue that Welsh devolution should be reformed on the basis of a reserved powers model such as that which applies to Scotland.
David Dixon is a senior lecturer at Cardiff Law School and teaches on the LPC and GDL. He represents the constituency of South Wales on the council of the Law Society and is chairman of the Law Society’s Wales committee. The views expressed in this article are his personal views.