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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. Ratio |
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. Ratio |
Finally, I must deal with certain procedural issues which have arisen on this reference. Ratio |
The Local Government Act 1972 and the 1999 Order STA |
The power to make byelaws is conferred by a host of statutes, mostly on local authorities and similar bodies. Ratio |
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. Ratio |
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. STA |
Section 236 of the 1972 Act (section 236) is entitled Procedure, etc, for byelaws. STA |
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... |
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). STA |
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. STA |
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 co... |
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 Secre... |
The National Assembly for Wales (Transfer of Functions) Order 1999 STA |
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 wit... |
The 1999 Order was made pursuant to that provision, and was concerned with transferring a large number of functions of Ministers of the Crown to the Assembly. Ratio |
It did this by identifying each specific function which was to be so transferred. Ratio |
In some cases, there had to be qualifications to, and in other cases there had to be exceptions from or variations to, the transfer of functions. Ratio |
Thus, article 2 of the 1999 Order is to this effect: Schedule 1 to this Order shall have effect as follows (a) except as provided [below], all functions of a Minister of the Crown under the enactments specified in Schedule 1 are, so far as exercisable in relation to Wales, transferred to the Assembly; (b) where so dire... |
Schedule 1 to the 1999 Order sets out Enactments Conferring Functions Transferred by Article 2. Ratio |
The list of those enactments includes the 1972 Act, in respect of which it is expressly directed that the functions of the Secretary of State under section 236(11) shall be exercisable by the Assembly concurrently with the Secretary of State. Ratio |
The Local Government Byelaws (Wales) Bill 2012 STA |
Section 1 is entitled Overview, and it is in these terms, so far as relevant: This Act - (a) reforms procedures for making byelaws in Wales, including removing a requirement for confirmation of byelaws by the Welsh Ministers; . STA |
(d) restates for Wales a general power to make byelaws. STA |
Section 2 delimits the powers of a county or county borough to make byelaws, which must be for the good rule and government of the whole or any part of its area or to prevent nuisances in its area. STA |
Section 3 defines legislating councils, which extends to counties, county borough councils, community councils, National Park authorities in Wales, and the Countryside Council for Wales. STA |
Sections 4 and 5 deal with the powers of legislating authorities and the Welsh Ministers to revoke byelaws. STA |
Section 6 is entitled Byelaws not requiring confirmation, and the first two subsections are in these terms: (1) This section applies to byelaws made by a legislating authority under the enactments listed in Part 1 of Schedule 1 . STA |
(2) Before it makes a byelaw, an authority must (a) publish on the authoritys website an initial written statement which describes the issue which the authority thinks may be addressed by making a byelaw; (b) consult any person who the authority thinks is likely to be interested in, or affected by, the issue. STA |
The remaining six subsections set out the procedural requirements which a legislating authority must then satisfy before making a byelaw not requiring confirmation. STA |
These requirements include considering responses to the subsection (2) consultations, publishing on its website a further statement, followed by notice of the intention to make the byelaw, and then the draft byelaw, ensuring that the draft byelaw is available for inspection to those who want to see it, and making the b... |
Part 1 of Schedule 1 to the Bill has the same heading as section 6, and sets out what I call the scheduled enactments, which are specific sections of certain statutes, including a number of sections in respect of which it is common ground between all parties that section 236(11), as varied by the 1999 Order, applies. S... |
Most of these sections are in the Public Health Act 1936, and they include, for example, byelaw-making powers in relation to preventing the occurrence of nuisances from snow, filth, dust, ashes and rubbish (section 81), for regulation of sanitary conveniences (section 87), for regulating management of, and charges for,... |
Section 7 is concerned with Byelaws requiring confirmation, which subsection (1) explains are byelaws made by a legislating authority under any enactment other than those listed in Part 1 of Schedule 1, subject to exceptions set out in subsection (2), namely to the extent that the statutory power under which a particul... |
Subsections (3) to (9) then set out procedures which have to be followed by the legislating authority, which are similar to those in subsections (2) to (7) of Section 6. STA |
Subsections (10) to (12) of section 7 provide as follows: (10) The confirming authority may confirm, or refuse to confirm, any byelaw submitted to it under this section. STA |
(11) For the purposes of this Act, the confirming authority is (a) the person specified in the enactment under which the byelaws are made as the person who is to confirm the byelaws, or (b) if no person is specified, the Welsh Ministers. STA |
(12) The functions of the Welsh Ministers under subsection (11)(b) are exercisable concurrently with the Secretary of State. STA |
Section 8 is concerned with formalities for making byelaws. STA |
Section 9 is headed Power to amend Part 1 of Schedule 1, and is in these terms: The Welsh Ministers may by order amend Part 1 of Schedule 1 by adding to or subtracting from the list of enactments, or by amending the type of authority that may make byelaws without confirmation. STA |
Sections 10 and 11 are concerned with enforcement of byelaws, and sections 12 to 16 (and Part 2 of Schedule 1) with fixed penalty notices. STA |
Sections 18 to 23 are headed Miscellaneous and general, and only section 20, which is entitled Consequential amendments and incorporates Schedule 2, needs to be mentioned. STA |
Schedule 2 sets out a number of Minor and consequential amendments to other statutes. STA |
Paragraph 9(3) amends section 236, effectively limiting its ambit in local authorities to England. STA |
Paragraph 17 amends the 1999 Order, inter alia, by deleting the words directing that the functions of the Secretary of State under section 236(11) shall be exercisable by the Assembly concurrently with the Secretary of State. STA |
The question whether any of the provisions of the Bill are within the competence of the Assembly must be judged by reference to the 2006 Act, to which I now turn. Ratio |
The Government of Wales Act 2006 STA |
The provisions of the 2006 Act which are directly relevant for present purposes are in Part 4 and Schedule 7. Ratio |
The provisions which are of central importance are section 108, and paragraph 1 of Part 2, and paragraph 6 of Part 3, of Schedule 7. Ratio |
Section 108 is entitled Legislative competence and subsections (1) to (3) provide as follows: (1) Subject to the provisions of this Part, an Act of the Assembly may make any provision that could be made by an Act of Parliament. STA |
(2) An Act of the Assembly is not law so far as any provision of the Act is outside the Assemblys legislative competence. STA |
(3) A provision of an Act of the Assembly is within the Assemblys legislative competence only if it falls within subsection (4) or (5). STA |
It is common ground that subsections (4) and (5) present no problems for the Bill in the present case. STA |
Subsection (4) requires every provision in an Act of the Assembly to relate to one or more of the subjects listed in Part 1 of Schedule 7, which every provision in the Bill does. STA |
Subsection (6) states: (6) But a provision which falls within subsection (4) or (5) is outside the Assemblys legislative competence if (a) it breaches any of the restrictions in Part 2 of Schedule 7, having regard to any exception in Part 3 of that Schedule from those restrictions, . . STA |
Part 2 of Schedule 7 is headed General Restrictions, and the first of those restrictions is in paragraph 1, which is headed Functions of a Minister of the Crown, and is in these terms: (1) A provision of an Act of the Assembly cannot remove or modify, or confer power by subordinate legislation to remove or modify, any ... |
(3) In this Schedule pre-commencement function means a function which is exercisable by a Minister of the Crown before [5 May 2011]. STA |
Part 3 of Schedule 7 is headed Exceptions from Part 2, the first of which is in paragraph 6, which has a very similar heading to paragraph 1 of Part 2, and states: (1) Part 2 does not prevent a provision of an Act of the Assembly removing or modifying, or conferring power by subordinate legislation to remove or modify,... |
I must also refer to section 112(1), which explains how this reference arises. STA |
It empowers the Counsel General or the Attorney General to refer the question whether a Bill, or any provision of a Bill, would be within the Assemblys legislative competence to the Supreme Court for decision. STA |
Pending such a reference, a Bill cannot be given Royal Assent see section 115. STA |
It is also appropriate to refer to section 154, which provides: (1) This section applies to (b) any provision of an Act of the Assembly, or a Bill for such an Act, which could be read in such a way as to be outside the Assemblys legislative competence, (2) The provision is to be read as narrowly as is required for it t... |
Preliminary issues: the meaning of concurrently Ratio |
While the central issue on this reference is whether section 6 and section 9 are outside the legislative competence of the Assembly, there are two preliminary points which have been debated and which need to be resolved before turning to that central issue. Ratio |
First, there is the question of what is meant by the direction in the 1999 Order that the functions of the Secretary of State under section 236(11) shall be exercisable by the Assembly concurrently with the Secretary of State. Ratio |
Three possible interpretations were aired. Ratio |
The first interpretation, which arose in argument, is that the Assembly is to exercise each of the functions, but needs the Secretary of States agreement before it does so. Ratio |
The second and third interpretations both involve the Assembly and the Secretary of State each having the right to exercise the functions. Ratio |
The second interpretation, favoured by Mr Williams for the Assembly, is that, in relation to any particular function, it is, as a matter of law, only the Assembly or, as the case may be, the Secretary of State who can exercise the function. Ratio |
The third interpretation, favoured by Mr Jonathan Swift QC (who appeared with Ms Joanne Clement for the Attorney General) and by the Counsel General, is that, subject to the normal public law principle of rationality, it is open to either the Secretary of State or the Assembly to exercise any of the functions. Ratio |
I have reached the clear conclusion that the third of these interpretations is correct. Ratio |
First, the natural meaning of concurrently in a provision such as the 1999 Order, which involves two persons or entities having concurrent functions, is that they each have the right to exercise the functions separately. Ratio |
The primary meaning of the word concurrent is running with rather than agreeing. Ratio |
And it would involve implying some qualification to the provision, if only one of the two persons or entities could exercise any particular function. Ratio |
Indeed, if each function could only be exercised by the Assembly or the Secretary of State, it would be the antithesis of their having concurrent power. Ratio |
Secondly, the notion that the Assembly can exercise any of the functions, but only with the consent of the Secretary of State, would effectively mean that there is no difference between concurrent functions and joint functions. Ratio |
That is unlikely as the 1999 Order refers in a number of places to joint exercise of functions, including in article 2(c). Ratio |
That point is reinforced when one looks at section 22(1) of the 1998 Act, under which the 1999 Order was made: subsection (b) deals with concurrently exercisable functions, and subsection (c) is concerned with functions exercisable by the Secretary of State with the agreement of the Assembly. Ratio |
Thirdly, Craies on Legislation 10th ed, (2012) supports the notion that the concept of concurrent power to exercise functions has an established meaning in legislation. Ratio |
At para 3.12.6, it is stated that [w]here a function is vested in two Ministers concurrently, either may perform it, acting alone, on any occasion. Ratio |
While no case law is cited in support of this proposition, such an unequivocal statement in a respected book on the subject deserves respect, and is likely to be familiar to those responsible for drafting statutes. Ratio |
Fourthly, it seems far more sensible and consistent with the purpose of the Welsh devolution legislation to conclude that it was intended that the Assembly and the Secretary of State were each intended to have the power to exercise the concurrent functions, and that it was to be left to their good sense to decide which... |
As Lord Carnwath said during argument, the courts should only be involved where normal public law principles justify quashing a particular exercise of a function on the ground that it should not have been exercised by the particular person or entity. Ratio |
Preliminary issues: does any question of legislative competence arise? Ratio |
The Attorney General for Northern Ireland contends that the instant reference is, in effect, misconceived, at least in relation to section 6, because that section would not have the effect which the Attorney General contends, namely removing any right vested in the Secretary of State to confirm byelaws. ARG |
He puts this point in two ways. ARG |
The first way in which the argument is put is that Section 6 itself does not remove any right. ARG |
I will discuss that point when considering the central issue on this reference. Ratio |
However, even if it is right, it could be no more than a technical point, as there can be no doubt but that paragraphs 9 and 17 of Schedule 2 to the Bill indubitably remove the Secretary of States right to confirm byelaws under section 236(11). Ratio |
Accordingly, the first way of putting the Attorney General for Northern Irelands point goes nowhere in substantive terms (albeit that it has some relevance to the central issue, and it gives rise to a procedural point which Lord Hope discusses in his judgment). Ratio |
The second way in which the Attorney General for Northern Ireland puts his case is that section 236(11) states in terms that it applies only to those byelaws for which there is no statutory provision for confirmation by someone other than the Secretary of State. ARG |
Accordingly, runs the argument, section 236(11) specifically contemplates, and therefore effectively permits, a subsequent statutory provision conferring the confirmatory function, in respect of any byelaw to which section 236(11) currently applies, on some other person or entity. ARG |
This argument is ingenious, but I would reject it. Ratio |
It seems to me clear that the effect of section 236(11) was to confer a function on the Secretary of State, and the Bill, if it becomes an Act, will remove that function from the Secretary of State in relation to the scheduled enactments, and accordingly, paragraph 1 of Part 2 of Schedule 7 to the 2006 Act appears to b... |
The fact that the function concerned was conferred by a default statutory provision, which specifically envisages that there may be legislation which transfers the function to someone else, does not alter the fact that the confirmatory function of the Secretary of State falls within the ambit of paragraph 1(3) of Part ... |
The central issue on this reference: Section 6 of the Bill Ratio |
It is common ground between the original parties to this reference that section 6 is within paragraph 1 of Part 2 of Schedule 7 to the 2006 Act, in that it would have the effect of remov[ing] [a] pre-commencement function of a Minister of the Crown, namely the Secretary of States role in confirming (or refusing to conf... |
On that basis the only issue is whether, as the Counsel General contends (with the support of Mr Williams and the Attorney General for Northern Ireland), the section can be saved on the basis that, in so far as it would remove the pre- commencement function, it would be within paragraph 6(1)(b) of Part 3 of Schedule 7 ... |
However, as already mentioned, the Attorney General for Northern Ireland challenges the otherwise agreed proposition that section 6 would remove the Secretary of States confirmatory role under section 236(11) in relation to any scheduled enactments. ARG |
He makes the point that section 1 only refers to the confirmatory powers of the Welsh Ministers, not to the Secretary of States powers, and that no part of section 6 refers to his powers either. ARG |
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