AGRICULTURAL SECTOR (WALES) BILL - Reference by Attorney General for England and Wales
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lord Thomas,Lord Neuberger,Lady Hale,Lord Kerr |
| Judgment Date | 09 July 2014 |
| Neutral Citation | [2014] UKSC 43 |
| Court | Supreme Court |
| Date | 09 July 2014 |
[2014] UKSC 43
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Reed
Lord Thomas
THE SUPREME COURT
Trinity Term
Appellant
Dominic Grieve QC Jonathan Swift QC Joanne Clement
(Instructed by Treasury Solicitors)
Respondent
Theodore Huckle QC Elisabeth Laing QC
(Instructed by Welsh Government Legal Services Department)
Respondent
John F Larkin QC Conleth Bradley SC
(Instructed by Office of the Attorney General for Northern Ireland)
Heard on 17 and 18 February 2014
Lord Reed AND Lord Thomas (with whom Lord Neuberger, Lady Hale and Lord Kerr agree)
Her Majesty's Attorney General for England and Wales has referred to this Court under section 112(1) of the Government of Wales Act 2006 ("GWA 2006") the question of whether, on the proper construction of section 108 and Schedule 7 to the GWA 2006, the Agricultural Sector (Wales) Bill 2013 ("the Bill") is within the legislative competence of the National Assembly of Wales ("the Assembly").
The Bill was passed on 17 July 2013 primarily to establish a scheme for the regulation of agricultural wages in Wales. As we shall explain in more detail, the Agricultural Wages Act 1948 had until 2013 provided a regime for regulating agricultural wages for England and Wales under the superintendence of the Agricultural Wages Board. The Board made its last Order in July 2012. In 2013 the United Kingdom Parliament enacted the Enterprise and Regulatory Reform Act. Section 72 of that Act abolished the Agricultural Wages Board for England and Wales. Schedule 20 repealed or amended many of the provisions of the Agricultural Wages Act 1948 and other statutory provisions and subordinate legislation relating to the agricultural wages regime.
The Welsh Assembly Government ("the Welsh Government") decided that it wished to retain a regime for the regulation of agricultural wages in Wales. The Assembly seeks through the Bill to implement this policy by establishing for Wales such a regime through an Agricultural Advisory Panel for Wales. The Assembly considers that it has the legislative competence to do so, relying on section 108 of, and Schedule 7 to, the GWA 2006, which give it competence to make legislation which relates to:
"Agriculture. Horticulture. Forestry. Fisheries and fishing. Animal health and welfare. Plant health. Plant varieties and seeds. Rural development."
The submission of the Attorney General and the Counsel General is that the GWA 2006 has to be interpreted against the legislative background of the regulation of agricultural wages in the United Kingdom and the development of the devolution settlement for Wales. When so considered, the Attorney General submits that in reality the Bill does not relate to agriculture but to employment and industrial relations, which have not been devolved. In the submission of the Counsel General, the Bill relates to agriculture; and that is sufficient to bring it within the legislative competence of the Assembly, as a matter of the proper interpretation of section 108 and Schedule 7. For the reasons explained below, the Bill falls in our judgment within the competence of the Assembly.
The sole issue before the court is the proper interpretation of the GWA 2006. It is common ground that the principles to be adopted are those set out by Lord Hope in Local Government Byelaws (Wales) Bill 2012 – reference by the Attorney General for England and Wales [2012] UKSC 53; [2013] 1 AC 792, paras 78–81, following on from the guidance given in Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40, paras 44–53 and Imperial Tobacco v Lord Advocate [2012] UKSC 61; 2013 SC (UKSC) 153 paras 7–15.
Those principles can be summarised as follows:
i) The question whether a provision is outside the competence of the Assembly must be determined according to the particular rules that section 108 of, and Schedule 7 to, the GWA 2006, have laid down: see the Local Government Byelaws (Wales) Bill 2012 case at para 79.
ii) The description of the GWA 2006 as an Act of great constitutional significance cannot be taken, in itself, to be a guide to its interpretation. The statute must be interpreted in the same way as any other statute: Local Government Byelaws (Wales) Bill 2012, para 80.
iii) When enacting the GWA 2006 Parliament had to define, necessarily in fairly general and abstract terms, permitted or prohibited areas of legislative activity. The aim was to achieve a constitutional settlement. It is proper to have regard to that purpose if help is needed as to what the words mean: see the Local Government Byelaws (Wales) Bill 2012 case at para 80.
It is convenient first to set out the legislative background relating to the regulation of agricultural and other wages in the United Kingdom and the operation of the Agricultural Wages Act 1948 ("the 1948 Act") in relation to Wales between 1964 and 1998.
An Agricultural Wages Board was first established under the Corn Production Act 1917. Provisions of that Act imposed on an Agricultural Wages Board the duty to set a minimum wage for agricultural workers and gave it other powers and duties. Prior to that Act the Board of Trade had been given power under the Trade Boards Act 1909 to regulate wages in certain specified trades in the clothes-making and related industries, and to establish a Wages Board to fix minimum wages in any branch of such trades where an exceptionally low wage was paid. The Corn Production Act 1917 incorporated some of the provisions of the Trade Boards Act 1909.
Between 1917 and 1948 there were several statutes which provided for amended schemes for agricultural wages. Trade boards were also established to regulate wages in other industries. It is not necessary to refer to the amendments to the agricultural wages schemes or to the schemes for other industries. It is sufficient to note that the Agriculture Act 1920 provided that separate powers should apply with respect to Wales but, unlike Scotland, no separate Board of Agriculture was established for Wales; the functions in Wales were carried out by the Minister for Agriculture and Fisheries. That Act also established a Central Agricultural Wages Committee for Wales which was to exercise the powers of the Agricultural Wages Board in Wales. Those provisions did not survive long, as the Agricultural Wages (Regulation) Act 1924 set up agricultural wages committees in each of the counties of England and Wales and an Agricultural Wages Board for England and Wales. The function of the county agricultural wages committees was to set minimum rates of pay which were then to be notified to the Board, which made an order to carry out the decisions of such committees.
In the immediate aftermath of the 1939–45 war the Wages Councils Act 1945 provided for the replacement of trade boards by wages councils across a large number of industrial sectors and the scheme for agricultural wages was further changed.
The 1948 Act consolidated the changes. The scheme as established under that Act was that the Agricultural Wages Board for England and Wales had a duty to set a minimum wage for workers employed in agriculture and also had the power to set other terms and conditions of employment. Agricultural wages committees for counties or combinations of counties in England and Wales had various functions but gradually the functions of these committees became minimal. Under section 16 the Minister was given power to make regulations for giving effect to or modifying the Act so far as it related to holidays and holiday pay. The Act did not extend to Scotland or Northern Ireland. The Act was amended by various Acts including the Agriculture Act 1967, the Equal Pay Act 1970 and the Employment Protection Act 1975.
There was separate legislation for Scotland from 1937. It made provision for an Agricultural Wages Board for Scotland and a Scottish Department of Agriculture. The legislation for Scotland was consolidated in the Agricultural Wages (Scotland) Act 1949, with the Secretary of State for Scotland exercising ministerial powers under that Act.
By 1993 the scheme for regulating agricultural wages under the 1948 Act was the only scheme for the regulation of wages in industry which remained. In the 1960s and 1970s some wages councils were abolished, and the powers of the remaining wages councils were reduced by the Wages Act 1986. The Trade Union Reform and Employment Rights Act 1993 abolished all the remaining wages councils.
With effect from April 1999 the 1948 Act was amended by the National Minimum Wage Act 1998, and the functions and powers of the Agricultural Wages Board were revised.
In October 1964 the Prime Minister created the post of Secretary of State for Wales and the Welsh Office. From that time forward various executive powers of the departmental Secretaries of State and ministries in Whitehall were transferred to the Secretary of State for Wales.
Under these arrangements the Transfer of Functions (Wales) (No. 1) Order 1978 ( SI 1978/272) transferred to the Secretary of State for Wales with effect from 1 April 1978 many of the functions of the Minister of Agriculture, Fisheries and Food in respect of Wales, to be exercised either solely or concurrently with the Minister. The powers transferred included the enforcement of agricultural wages legislation in Wales, the establishing of agriculture wages committees in Wales, and other powers that were to be exercised jointly with the Minister for Agriculture Fisheries and Food.
The assumption of these functions by...
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