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In my view, this point highlights the way in which the Bill is structured, and, more importantly for present purposes, it tends to support the argument advanced by the Counsel General, namely that the removal by the Bill of the Secretary of States power to confirm byelaws under section 236(11) is indeed incidental to, ... |
The answer to the question whether a particular provision in an enactment is incidental to, or consequential on another provision, obviously turns on the facts of the particular case. Ratio |
The answer may to some extent be a question of fact and degree, and it should turn on substance rather than form, although, of course, in any well drafted Bill, the substance will be reflected in the form, at least in relation to that sort of question. Ratio |
Assistance on the point may be gleaned from what was said in this court in Martin v Most [2010] UKSC 10; [2010] SC (UKSC) 40, about paragraph 3(1)(a) of Schedule 4 to the Scotland Act 1998, which permits the Scottish Parliament to modify the law on reserved matters if, inter alia, the modification is incidental to, or ... |
There is a close similarity between those words and the words in paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act, and the two provisions are concerned with similar material. Ratio |
However, they are found in different statutes, and one must therefore be wary of assuming that they have precisely the same effect, as context is so crucially important when interpreting any expression, perhaps particularly an expression as potentially fact-sensitive as incidental to, or consequential on. Ratio |
Nonetheless, I consider that the approach adopted in that case is of assistance here. Ratio |
In a brief passage at [2010] UKSC 10, paragraph 40, Lord Hope described a point as important in explaining why it was not incidental or consequential on provisions found elsewhere in the enactment. Ratio |
Lord Rodger described certain amendments as falling within paragraph 3(1)(a) of Schedule 4 to the Scotland Act 1998, if they raise[d] no separate issue of principle, and were safely stowed away in a schedule in paragraph 93. Ratio |
He referred back to that observation at paragraph 128, where he described paragraph 3(1)(a) of Schedule 4 to the Scotland Act 1998 as intended to cover the kinds of minor modifications which are obviously necessary to give effect to a piece of devolved legislation, but which raise no separate issue of principle. Ratio |
He contrasted them with other provisions which were independent and deal with distinct aspects of the situation. Ratio |
Section 6 of the Bill plainly is intended to have the effect of removing the need for confirmation by the Welsh Ministers of any byelaw made under the scheduled enactments. Ratio |
That is a primary purpose of the Bill, as is clear from reading the provisions quoted above, both in itself and for the purpose of streamlining and modernising the making of byelaws. Ratio |
I consider that, applying the approach of Lord Hope and Lord Rodger in Martin v Most [2010] UKSC 10, the removal of the Secretary of States confirmatory powers by the Bill in relation to the scheduled enactments would be incidental to, and consequential on, this primary purpose. Ratio |
In summary form, I reach this conclusion because of the following combination of circumstances, of which points (i) and (iv) are particularly telling. Ratio |
(i) The primary purpose of the Bill cannot be achieved without that removal, (ii) the Secretary of States confirmatory power is concurrent with that of the Welsh Ministers, (iii) the confirmatory power arises from what is in effect a fall-back provision, (iv) the scheduled enactments relate to byelaws in respect of whi... |
The first of these reasons is obvious. Ratio |
One of the streamlining and modernising purposes of the Bill would be undermined if the Secretary of States confirmatory function remained in respect of any of the scheduled enactments. Ratio |
There would be no point in removing the Welsh Ministers confirmatory function in relation to the scheduled enactments unless the Secretary of States concurrent function was also disposed of. Ratio |
Indeed, the notion that the Assembly would intend to remove the Welsh Ministers confirmatory function while retaining that of the Secretary of State is bizarre. Ratio |
Secondly, there is attraction in the point that the Secretary of States confirmatory function has become redundant on the basis that, as Lord Clarke put it, the enactment by the Assembly of section 6(1) amounted to a blanket confirmation in advance by the Welsh Ministers of any future byelaw made under the scheduled en... |
While a blanket confirmation in advance of any byelaw cannot be a valid exercise of the Welsh Ministers confirmatory function, the argument highlights the oddity of the Secretary of States confirmatory power surviving the removal of the Welsh Ministers confirmatory power. Ratio |
Thirdly, there is the fact that the confirmatory function bestowed on the Secretary of State by section 236(11) is really a default function. Ratio |
The confirmatory function is only given to the Secretary of State if no other statute (including one passed after the 1972 Act) confers the function on any other body or person. Ratio |
To my mind, that feature tends to support the notion that it is not, to use Lord Hopes word in Martin v Most [2010] UKSC 10, paragraph 40, an important function. Ratio |
Thus, the point made by the Attorney General for Northern Ireland assists my conclusion. Ratio |
Fourthly, and most crucially, the scheduled enactments concern byelaws whose nature is such that it would be for the Welsh Ministers, rather than the Secretary of State, to confirm them. Ratio |
This is because they are very much directed to local, small-scale (but important) issues. Ratio |
That point is strongly supported by the fact that it appears that, since the 1999 Order came into force, it has always been the Welsh Ministers, rather than the Secretary of State, who have exercised the confirmatory function in relation to byelaws made under any of the scheduled enactments. Ratio |
It seems to me that, in those circumstances, given the purpose of section 6, and the purpose of the Bill as explained in section 1, it would be positively perverse if the Secretary of State should retain the confirmatory function when the Welsh Ministers have disclaimed their confirmatory function. Ratio |
It was not suggested by Mr Swift that there were any circumstances envisaged by the Secretary of State in which she would wish to exercise her confirmatory function in relation to the scheduled enactments. Ratio |
In practical terms, this conclusion is supported by the fact that the only reason the Secretary of State did not consent to section 6 had nothing to do with the contents of that section or of Schedule 1, but with the inclusion of section 9 in the Bill. Ratio |
Fifthly, as pointed out by Lord Reed, the provisions of section 7 of the Bill give some support for this conclusion. Ratio |
It establishes new concurrent powers in relation to byelaws (other than the scheduled enactments) which previously fell within section 236(11). Ratio |
Where subsections (11)(b) and (12) of section 7 apply, the confirmatory power of the Welsh Ministers is exercisable concurrently with that of the Secretary of State. Ratio |
This reinforces the argument that the Secretary of States confirmatory function under section 236(11) is redundant as a result of the enactment of sections 6 and 7. Ratio |
Finally, it is important, as the Counsel General argued, to arrive at a conclusion which gives a provision such as paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act some real effect. ARG |
It is difficult to think of circumstances in which it would have effect if it does not apply to section 6. ARG |
Mr Swift suggested that, if it did not apply to section 6, it could still apply in a case where the Assembly abolished a statutory provision for byelaws altogether. ARG |
I do not find that very persuasive. Ratio |
First, if he is right in the present case, it suggests that the provision can apply in a more extreme type of case than the present case, but not in the present case. Ratio |
Secondly, I am not convinced that it would be necessary to remove a power to confirm byelaws in relation to a given activity if the power to make byelaws in relation to that activity was abolished. Ratio |
The central issue on this reference: section 9 of the Bill Ratio |
Section 9 of the Bill would have the effect of enabling the Welsh Ministers to add to (and to subtract from) the scheduled enactments, which would then become subject to the section 6 procedure, rather than the section 7 procedure. Ratio |
As already explained, the crucial difference for present purposes between the two procedures is the requirement under section 7 for confirmation of the byelaw by Welsh Ministers and/or the Secretary of State or other Minister of the Crown (depending on the statutory provision under which the byelaw is made) see, in par... |
The Attorney Generals argument is that section 9 would confer power on the Welsh Ministers by subordinate legislation to remove or modify pre- commencement function[s] of a Minister of the Crown. ARG |
Accordingly, he argues, by virtue of section 108(6)(a) of, and paragraph 1(1) of Part 2 of Schedule 7 to, the 2006 Act, the section is outside the legislative competence of the Assembly. ARG |
If section 9 is to be interpreted as giving the Welsh Ministers power to add to the scheduled enactments any enactment which gives the Secretary of State or another Minister of the Crown a confirmatory function in relation to byelaws, then I would accept that argument. Ratio |
However, there could be no objection to the section, if the scope of the power it would confer on the Welsh Ministers was limited to byelaws made under enactments which currently satisfy one of two requirements. Ratio |
Those requirements are that the enactment concerned (i) identifies the Welsh Ministers, and not a Minister of the Crown, as having the confirmatory power, or (ii) identifies a Minister of the Crown as having the confirmatory power, but the removal of that power would be incidental or consequential within the meaning of... |
The basis for requirement (i) is self-evident, and the basis for requirement (ii) is the same as that for concluding that section 6 is within the legislative competence of the Assembly. Ratio |
Although it is perfectly true that there are no express words in section 9 which limit its scope in this way, I am satisfied that it does have such a limited effect. Ratio |
That is because of the simple legal principle, identified by Lord Reed, embodied in the Latin maxim nemo dat quod non habet. Ratio |
Given that the jurisdiction of the Assembly is limited to removing, or delegating the power to remove, functions of Ministers of the Crown when the removal satisfies the requirements of paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act, the Assembly cannot confer a wider power on Welsh Ministers. Ratio |
Accordingly, the wide words of section 9 must be read as being circumscribed in their scope so as to render the section valid. Ratio |
The same conclusion can be arrived at by invoking section 154(2) of the 2006 Act. Ratio |
It would not be permissible to invoke that statutory provision if it was inconsistent with the plain words of section 9. Ratio |
However, it would, in my view, be permissible to invoke it to limit the apparently unlimited and general effect of that briefly expressed section. Ratio |
Such an interpretation is consistent with the thrust of the Bill as a whole, and it does not conflict with any other provision in the Bill. Ratio |
And that point is reinforced by the fact that all the currently scheduled enactments satisfy requirements (i) or (ii). Ratio |
Some procedural issues Ratio |
I have read in draft the judgment to be given by Lord Hope. Ratio |
He discusses certain practical issues in paragraphs 85 to 100, and I agree with what he says. Ratio |
I should add that I also agree with his further observations at paragraphs 71 to 84. Ratio |
Conclusion RPC |
For these reasons, I would make a declaration on the reference that the Assembly had the legislative competence to enact sections 6 and 9 of the Bill. RPC |
It should be added that, although this is a successful outcome for the Assembly and the Counsel General, it cannot be regarded as a setback in practical terms for the Secretary of State. Ratio |
Somewhat curiously, the conclusion I have reached as to the effect of section 9 is one which reflects the terms on which she was prepared to give her consent to Section 6 of the Bill. Ratio |
It is also right to say that, standing back, and considering the general purpose of the 2006 Act and the 1999 Order, this appears to be a sensible conclusion. Ratio |
As Lord Carnwath said, the desirability of streamlining and modernising the system for making byelaws is reflected in section 236A of the 1972 Act, which only applies to England, and was inserted by section 129 of the Local Government and Public Involvement in Health Act 2007. Ratio |
A similar system of modernising and streamlining the system in Wales is hard to object to. Ratio |
And, if that system removes the confirmatory function of the Secretary of State, or other Ministers of the Crown, but only where (i) the function is concurrently exercisable with Welsh Ministers, and (ii) the byelaws concerned would probably always be for the Welsh Ministers to confirm, it would be entirely consistent ... |
Finally, it is right to record that various other issues were canvassed in the written and oral arguments. Ratio |
They included the proper approach to the interpretation of the 2006 Act as a constitutional enactment, and whether certain statutory provisions mentioned in Part 1 of Schedule 1 were governed by section 236(11). Ratio |
Given my conclusions on the issues considered in this judgment, it is unnecessary to determine those other issues, and it therefore seems to me appropriate to leave them to be resolved if and when it is necessary to do so in a future appeal or reference. Ratio |
LORD HOPE (with whom Lord Clarke, Lord Reed and Lord Carnwath agree) Ratio |
I add this supplement to Lord Neubergers judgment, with which I am in full agreement, in order to do two things. Ratio |
The first is to make some general observations on the approach to issues about the legislative competence of the National Assembly for Wales in the light of the Scottish experience. Ratio |
The second is to provide guidance on some matters of practice which require clarification in the light of the way this reference has been dealt with. Ratio |
Background Ratio |
The making of this reference to the Supreme Court is a significant event in Welsh law. Ratio |
The Local Government Byelaws (Wales) Bill 2012 is the first Bill to have been passed by the Assembly. Ratio |
That in itself is important, as it has provided the Assembly with the first opportunity to put into practice its power to make laws. Ratio |
That power was given to it by section 107(1) of the Government of Wales Act 2006 (the 2006 Act) upon the coming into force on 5 May 2011 of the Assembly Act provisions in Part 4 of the Act. Ratio |
Now there is the making of the reference. Ratio |
This is an even more significant milestone than, in the words of Lady Cosgrove, the case of A v Scottish Ministers [2002] SC (PC) 63 was for Scotland: see para 2. Ratio |
In that case the first Act of the Scottish Parliament, the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, received the Royal Assent 13 days after the Bill had been introduced in the Parliament as a matter of urgency. Ratio |
A restricted patient who was being detained in the State Hospital then challenged the Parliaments legislative competence on the ground that the Act was incompatible with his Convention rights. Ratio |
It took nearly two years before, after working its way through the devolution issues procedure, the challenge was finally dismissed by the Judicial Committee of the Privy Council. Ratio |
Here use is being made, for the first time, of the power that is given by section 112 of the 2006 Act to the Counsel General or the Attorney General to refer the question whether a Bill would be within the Assemblys legislative competence to the Supreme Court for decision before it is submitted for Royal Assent under s... |
A similar provision was included in section 33 of the Scotland Act 1998 (the 1998 Act) to ensure that the Lord Advocate and the law officers of the United Kingdom Government were content that Bills of the Scottish Parliament were within competence before they were submitted for Royal Assent under section 32 by the Pres... |
The Scottish Parliament has passed many Bills since that Act came into force. Ratio |
But none of them has been challenged before enactment by any of the relevant law officers. Ratio |
So there has not yet been an occasion for the making use in relation to any of its Bills of the power under section 33 for pre-legislative scrutiny. Ratio |
The reason why a reference has been made in this case, in contrast to the lack of use of the equivalent provision in Scotland, is likely to lie in differences between the systems that have been used to devolve legislative power to the devolved legislatures from the United Kingdom Parliament at Westminster and executive... |
Under the Scottish system, the general power to make laws conferred on the Scottish Parliament by section 28 is subject to section 29 of the 1998 Act, which provides that an Act of the Scottish Parliament is outside its competence so far as, among other things, it relates to matters reserved to Westminster or is in bre... |
A list of the reserved matters is set out in Schedule 5 to the 1998 Act. Ratio |
These provisions were accompanied by a general transfer of functions conferred on Ministers of the Crown to the Scottish Ministers by section 53, so far as these functions are exercisable within devolved competence. Ratio |
This difference of approach can be illustrated by comparing the restrictions on the powers of the Assembly under Part 2 of Schedule 7 to the 2006 Act, read together with the exceptions in Part 3, with the restrictions on the powers of the Scottish Parliament under Schedule 4 to the 1998 Act. Ratio |
The Assembly cannot remove or modify, or confer power by subordinate legislation to remove or modify, any pre-commencement function of the Minster of the Crown unless (a) the Secretary of State consents to the provision or (b) the provision is incidental to, or consequential on, any other provision contained in the Act... |
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