LOCAL GOVERNMENT BYELAWS (WALES) BILL 2012 - Reference by the Attorney General for England and Wales

A devolved legislature may remove or modify a pre-commencement ministerial function where that change is incidental or consequential to another provision within its competence. The question is one of substance, fact and degree. A change is incidental or consequential where it is subsidiary to the enactment’s principal purpose and minor or unimportant in the context of the enactment as a whole.

A provision conferring subordinate legislative power cannot give the recipient greater power than the devolved legislature itself possesses. Apparently general language must, where possible, be read as narrowly as required to keep it within legislative competence under section 154(2) of the Government of Wales Act 2006.

The Attorney General referred to the Supreme Court under section 112 of the Government of Wales Act 2006 the question whether sections 6 and 9 of the Local Government Byelaws (Wales) Bill 2012 were within the National Assembly for Wales’s legislative competence.

Section 6 removed the requirement that specified local authority byelaws be confirmed by the Welsh Ministers. Consequential amendments also removed a concurrent confirmatory function held by the Secretary of State. Section 9 empowered the Welsh Ministers to amend the list of enactments under which byelaws could be made without confirmation.

The central questions were whether removal of the Secretary of State’s function was incidental or consequential to another provision of the Bill, and whether section 9 impermissibly authorised the Welsh Ministers to remove other pre-commencement ministerial functions.

1. Declaration that both provisions were within competence. Lord Neuberger, with whom Lord Clarke, Lord Reed and Lord Carnwath agreed, held that the Assembly had legislative competence to enact sections 6 and 9. Lord Hope, with the agreement of the same Justices, reached the same conclusion.

2. A function exercisable “concurrently” by the Secretary of State and the devolved authority could be exercised separately by either of them. Concurrent exercise did not require agreement and was distinct from joint exercise. Subject to ordinary public law principles, either holder could exercise the function: paras 37–41.

3. Section 6 removed a pre-commencement function of a Minister of the Crown, engaging paragraph 1 of Part 2 of Schedule 7 to the Government of Wales Act 2006. The removal nevertheless fell within paragraph 6(1)(b) of Part 3 because it was incidental and consequential to the principal purpose of removing the Welsh Ministers’ confirmation requirement and streamlining Welsh byelaw procedure: paras 46–59.

   Whether one provision is incidental or consequential to another turns on substance, fact and degree. The court examines the significance of the change in the context of the enactment as a whole. A change with an independent end and purpose falls outside the exception. A subsidiary change whose consequence is minor or unimportant may fall within it: paras 49, 83.

   The removal was necessary to achieve the Bill’s purpose; concerned a concurrent, default function; affected local matters which had in practice been handled by Welsh Ministers; and raised no distinct issue of principle. Retaining the Secretary of State’s power after removing that of the Welsh Ministers would frustrate the reform: paras 53–59.

4. Read without limitation, section 9 could have permitted the Welsh Ministers to remove ministerial functions outside the Assembly’s competence. The Assembly could not confer a wider power than it possessed. Section 9 therefore authorised additions only where no Crown ministerial function was removed, or where its removal satisfied paragraph 6(1)(b). Section 154(2) independently required that competence-preserving construction: paras 60–64, 84.

5. Lord Hope explained that legislative competence is a question of law governed by section 108 and Schedule 7. Courts interpret and apply those statutory rules; they do not decide whether Westminster or the Assembly would be the preferable legislator: paras 78–83.

6. A section 112 reference is a sui generis proceeding. It must be served on any other relevant law officer, rather than on the Assembly. The Counsel General is the appropriate person to resist the reference in the public interest. The Assembly or its Commission may intervene with permission where their views would assist the court: paras 85–100.

This was a pre-enactment reference to the Supreme Court under section 112 of the Government of Wales Act 2006, not an appeal from a lower court. The Attorney General referred provisions of the first Bill passed under the Assembly’s primary legislative powers before the Bill was submitted for Royal Assent.