A Supreme Court judgment may pave the way for widening the scope of Welsh legislation into areas such as employment and criminal law, the Welsh Assembly’s chief legal adviser said today.
Giving the Law Society Eisteddfod Lecture, Elisabeth Jones, director of legal services at the Welsh National Assembly, said the the Supreme Court’s ruling last month that the Agricultural Sector (Wales) Bill 2013 falls within the legislative competence of the National Assembly for Wales has ‘hugely significant’ implications both for the clarity and the scope of the devolution settlement.
The Westminster government had asked the Supreme Court to rule whether the bill’s measures relating to agricultural workers should be classified as agricultural, and therefore within the competence of the Government of Wales Act 2006 or relating to employment, which was not listed by the act as a matter of competence.
The court held that a bill would be within Welsh competence if it ‘fairly and realistically’ relates to a subject listed as a matter of competence in the Government of Wales Act – even if it could also be classified as relating to a subject which has not been devolved, Jones said.
This is a ‘huge increase’ in the clarity of the settlement – and it also opens to way to a wider exercise of devolved powers into ‘phantom’ topics which are listed neither as competencies nor exceptions.
While the judgment ‘absolutely does not’ rewrite the devolution settlement, she said it ‘clarifies the settlement in a way that gives it the maximum width possible’.
The ruling potentially allows the Welsh Assembly to legislate on topics that are not referred to in the Government of Wales Act as well as ‘cross-cutting areas of law like contract, tort and land law’, providing that the true purpose of the legislation refers to a subject listed as an area of competence under the act.
One consequence is that the judgment reveals areas in which the assembly has greater powers than the Scottish legislature, she said. For example, firearms law is a reserved matter for Westminster in Scotland, but is not mentioned in the Government of Wales Act.
Jones (pictured) emphasised that her personal opinions did not represent the position of the National Assembly of Wales.
Despite the judgment, there is still ‘unnecessary complexity’ in the settlement, she said. For example competence can be barred by the existence of 'rump UK ministerial functions' in largely devolved areas. She called for a 'root and branch review' of whole areas of law, and for a Scottish 'reserved powers' model to be considered as easier for the public to understand.
‘We could create a better world of clearer rights and duties that would be easier for citizens to enforce without incurring huge expense for themselves or the state. There are people in Wales - lawyers, politicians and people of ideas - who are capable of that challenge.’