Attorney General v National Assembly for Wales Commission
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Reed,Lord Clarke,Lord Neuberger,Lord Hope |
| Judgment Date | 21 November 2012 |
| Neutral Citation | [2012] UKSC 53 |
| Date | 21 November 2012 |
| Court | Supreme Court |
[2012] UKSC 53
THE SUPREME COURT
Michaelmas Term
Lord Neuberger, President
Lord Hope, Deputy President
Lord Clarke
Lord Reed
Lord Carnwath
Counsel for the Attorney
General for England and Wales
Jonathan Swift QC
Joanne Clement
(Instructed by Treasury Solicitor)
Counsel for the Counsel
General for Wales
Theodore Huckle QC
Clive Lewis QC
(Instructed by Welsh Government Legal Services Department)
Counsel for the Attorney
General for Northern Ireland
John F Larkin QC
David McAlister BL
(Instructed by Office of the Attorney General for Northern Ireland)
Counsel for the National
Assembly for Wales
Commission
Rhodri Williams QC
Rebecca Stickler
(Instructed by Geldards LLP)
Heard on 9 and 10 October 2012
Lord Neuberger (with whom Lord Clarke, Lord Reed and Lord Carnwath agree)
This is a reference made by the Attorney General for England and Wales ("the Attorney General") under section 112 of the Government of Wales Act 2006 ("the 2006 Act") for a determination on whether sections 6 and 9 of the Local Government Byelaws (Wales) Bill 2012 are within the legislative competence of the National Assembly for Wales ("the Assembly").
Following a referendum held in 1997, the Government of Wales Act 1998 ("the 1998 Act") set out the initial devolution settlement for Wales. This included the establishment of the Assembly, a body corporate which had the legal responsibility for discharging the devolved executive and legislative functions. Sections 21 and 22 of the 1998 Act governed the functions of the Assembly, and they included provisions for transferring functions vested in a Minister of the Crown to the Assembly, by Order in Council. Schedule 2 to the 1998 Act set out the "fields" of functions which were to be devolved to the Assembly in the first such Order in Council, including "[t]he environment' and '[l]ocal government". The first Order in Council making such provision was the National Assembly for Wales (Transfer of Functions) Order 1999, SI 1999 No 672 ("the 1999 Order").
The Assembly's legislative powers were limited, and a White Paper, "Better Governance for Wales" (Cm 6582) published in June 2005, proposed increasing those powers in three respects: (i) giving the Assembly wider powers to make subordinate legislation; (ii) allowing the United Kingdom Parliament ("Parliament") to confer enhanced legislative powers on the Assembly in relation to specified matters in devolved fields; and (iii) following a referendum, enabling the Assembly to make laws in all devolved fields without recourse to Parliament. These proposals were adopted by Parliament, and implemented by the 2006 Act.
Part 1 of the 2006 Act re-enacts many of the provisions of the 1998 Act, but it omits any reference to the Assembly being a corporate body. Section 45 establishes the Welsh Assembly Government, which comprises the First Minister, the Welsh Ministers, the Counsel General to the Welsh Assembly Government and the Deputy Welsh Ministers. Section 46 provides for the First Minister to be appointed by Her Majesty. Sections 48 and 50 confer on the First Minister the power to appoint, with the approval of Her Majesty, the Welsh Ministers and the Deputy Welsh Ministers from among the Assembly members. Sections 56 to 92 make provision about the functions of the First Minister, the Welsh Ministers, and the Counsel General.
Part 3 of, and Schedule 5 to, the 2006 Act contain what were anticipated to be transitional provisions regarding the Assembly's powers with effect from the day after the Assembly election in 2007. They were intended to be replaced by the "Assembly Act provisions", contained in Part 4 of, and Schedule 7 to, the 2006 Act. These provisions are intended, inter alia, to give the Assembly primary legislative powers for certain areas, and are provided by section 105 to come into force pursuant to an order made by Welsh Ministers following a referendum. That referendum duly took place, and the Welsh Ministers duly made the order contemplated, as a consequence of which the provisions of Part 3 and Schedule 5 lapsed, and the provisions of Part 4 and Schedule 7 took effect, on 5 May 2011.
As a result of this, the Assembly has power to make primary legislation, which powers are delimited by provisions which identified the extent of the Assembly's "legislative competence". If there is an issue as to whether a Bill, or a provision in a Bill, passed by the Assembly exceeds that competence, the issue can be referred to this court under the terms of section 112 of the 2006 Act.
The first Bill to be passed by the Assembly under its new power was the Local Government Byelaws (Wales) Bill 2012 ("the Bill"), the aim of which is to simplify procedures for making and enforcing local authority byelaws in Wales.
Certain provisions of the Bill, in particular section 6 and section 9 1, are intended to remove the need for the confirmation of byelaws by the Welsh Ministers or by the Secretary of State. Section 6 (through Part 1 of Schedule 1 to the Bill) refers to certain specific enactments ("the scheduled enactments") which currently require confirmation, and section 9 would empower the Welsh Ministers to add to those enactments.
The Secretary of State's consent to the inclusion of these two sections in the Bill was sought. She was prepared to agree to section 6 of the Bill ("section 6"), because she was content to give up her right to confirm byelaws made under the specific provisions identified in Part 1 of Schedule 1 to the Bill, but she was not prepared to agree to the inclusion of section 9 of the Bill ("section 9"). The Assembly nonetheless proceeded to pass the Bill with sections 6 and 9 in their
original form. The Attorney General then referred to this court the question whether sections 6 and 9 were outwith the Assembly's legislative competenceThe parties who were identified as respondents to the reference were (i) the National Assembly for Wales Commission, representing the Assembly, and (ii) the Counsel General, both of whom appeared before us. The Assembly was represented by Mr Rhodri Williams QC, with Ms Rebecca Stickler, and the Counsel General, Mr Theodore Huckle QC, was assisted by Mr Clive Lewis QC. The Attorney General for Northern Ireland, Mr John Larkin QC (who appeared with Mr David McAlister) also appeared, having been permitted to intervene, as the issues raised by this reference have potential implications for the extent of the legislative competence of the Northern Ireland Assembly under the Northern Ireland Act 1998.
I propose first to explain the position (under the Local Government Act 1972 and the 1999 Order) relating to the confirmation of many of the byelaws identified in Schedule 1 to the Bill, following which I will identify the relevant provisions of the Bill and of the 2006 Act. Having set the scene, as it were, I will then discuss certain preliminary issues, following which I will address the central issue on this reference. Finally, I must deal with certain procedural issues which have arisen on this reference.
The power to make byelaws is conferred by a host of statutes, mostly on local authorities and similar bodies. Many of those statutes contain specific provisions whereby a byelaw must be confirmed by some other body or person (normally the Secretary of State or another Minister of the Crown), but many do not.
The Local Government Act 1972 ("the 1972 Act"), as its long title states, includes many provisions concerning "local government and the functions of local authorities in England and Wales". Section 236 of the 1972 Act ("section 236") is entitled "Procedure, etc, for byelaws". Subsection (1) explains that, subject to certain exceptions (irrelevant for present purposes), the section "appl[ies] to byelaws to be made by a local authority under this Act and to byelaws made by a local authority … under any other enactment and conferring on the authority a power to make byelaws and for which specific provision is not otherwise made".
Section 236(3) sets out the technical requirements for a local authority making a byelaw (under its "common seal" or, where there is no seal, "under the hands and seals of two members"). Subsections (3), (4) and (5) of section 236 make reference to "confirmation" of a byelaw, and subsection (7) states that "[t]he confirming authority may confirm, or refuse to confirm, any byelaw submitted under this section".
Crucially for present purposes, section 236(11) is in these terms:
"In this section the expression 'the confirming authority' means the authority or person, if any, specified in the enactment (including any enactment in this Act) under which the byelaws are made, … as the authority or person by whom the byelaws are to be confirmed, or if no authority or person is so specified, means the Secretary of State."
The effect of this provision is that, where a statutory provision giving the local authority the power or duty to make the byelaw either so provides or is silent as to the existence or identity of a confirmatory body or person, before any byelaw made under that provision by a local authority can be effective, the Secretary of State has to confirm the byelaw.
The 1998 Act provided in section 22(1) that:
"Her Majesty may by Order in Council –
(a) provide for the transfer to the Assembly of any function so far as exercisable by a Minister of the Crown in relation to Wales,
(b) direct that any function so far as so exercisable shall be exercisable by the Assembly concurrently with the Minister of the Crown, or
(c) direct that any function so far as exercisable...
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