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The phrase incidental to, or consequential on is used in paragraph 3(1)(a) of Schedule 4 to the 1998 Act, which provides that the restriction on the power of the Scottish Parliament to modify, or confer power by subordinate legislation to modify, the law on reserved matters does not apply to modifications which are inc... |
But there is no reference here or anywhere else in the 1998 Act which defines devolved competence differently, to removing a pre-commencement function of a Minister of the Crown. Ratio |
A proper understanding of the effect of Schedule 7 to the 2006 Act, and of paragraph 6(1)(b) of Part 3 in particular, is of central importance to the resolution of the issue raised by this reference. Ratio |
So I think that it was entirely proper for the Attorney General to refer sections 6 and 9 of the Bill to this court for pre- legislative scrutiny under section 112 rather than raise the issue after its enactment as a devolution issue under section 149 and Schedule 9. Ratio |
Any delay in the submitting of a Bill which has been passed by the Assembly for Royal Assent is, of course, to be regretted. Ratio |
It was with that in mind that the hearing was given the earliest possible date in the courts programme. Ratio |
But it is to be hoped that it will be more than compensated for by the benefits that will come from the removal of uncertainty at the first opportunity as to whether sections 6 and 9 are within legislative competence. Ratio |
General principles Ratio |
It may be helpful to restate, in the Welsh context, some principles of general application that have guided the court when dealing with issues about the legislative competence of the Scottish Parliament. Ratio |
First, the question whether a Bill of the Assembly is within its legislative competence is a question of law which, if the issue is referred to it, the court must decide. Ratio |
The judicial function in this regard has been carefully structured. Ratio |
It is not for the judges to say whether legislation on any particular issue is better made by the Assembly or by the Parliament of the United Kingdom at Westminster. Ratio |
How that issue is to be dealt with has already been addressed by the United Kingdom Parliament. Ratio |
It must be determined according to the particular rules that section 108 of the 2006 Act and Schedule 7 have laid down. Ratio |
Those rules, just like any other rules, have to be interpreted. Ratio |
It is for the court to say what the rules mean and how, in a case such as this, they must be applied in order to resolve the issue whether the measure in question was within competence. Ratio |
Second, the question whether the Bill is within competence must be determined simply by examining the provisions by which the scheme of devolution has been laid out. Ratio |
That is not to say that this will always be a simple exercise. Ratio |
But, as Lord Walker observed in Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40, para 44 when discussing the system of devolution for Scotland, the task of the United Kingdom Parliament in relation to Wales was to define the legislative competence of the Assembly, while itself continuing as the sovereign legislature of... |
It had to define, necessarily in fairly general and abstract terms, permitted or prohibited areas of legislative activity. Ratio |
The aim was to achieve a constitutional settlement, the terms of which the 2006 Act was designed to set out. Ratio |
Reference was made in the course of the argument in the present case to the fact that the 2006 Act was a constitutional enactment. Ratio |
It was, of course, an Act of great constitutional significance, and its significance has been enhanced by the coming into operation of Schedule 7. Ratio |
But I do not think that this description, in itself, can be taken to be a guide to its interpretation. Ratio |
The rules to which the court must apply in order to give effect to it are those laid down by the statute, and the statute must be interpreted like any other statute. Ratio |
But the purpose of the Act has informed the statutory language, and it is proper to have regard to it if help is needed as to what the words mean. Ratio |
Third, the question whether measures passed under devolved powers by the legislatures in Wales, Scotland and Northern Ireland are amenable to judicial review, and if so on what grounds, was considered in AXA General Insurance Company Ltd v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868. Ratio |
The court in that case had the benefit of submissions by the Counsel General. Ratio |
It was common ground that, while there are some differences of detail between the 2006 Act and the corresponding legislation for Scotland and Northern Ireland, these differences do not matter for that purpose. Ratio |
The essential nature of the legislatures that the devolution statutes have created in each case is the same. Ratio |
But it has not been suggested that the Bill is the result of an unreasonable, irrational and arbitrary exercise of the Assemblys legislative authority. Ratio |
This case is concerned only with the question whether the Bill is outside competence under the provisions laid down by the statute. Ratio |
In the light of these principles the issue at the heart of the argument about section 6 of the Bill resolves itself into a simple question: what is meant by the phrase incidental to, or consequential on in paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act? Section 6 would have the effect of removing a pre- comm... |
According to the rules that section 108 read together with Part 2 of Schedule 7 have laid down, a provision of an Act of the Assembly cannot do this unless it falls within one of the exceptions in paragraph 6 of Part 3. Ratio |
I agree with Lord Neuberger that section 6 falls within the exception in paragraph 6(1)(b). Ratio |
The words incidental to, or consequential on, any other provision contained in the Act of the Assembly make it clear that the interpretative exercise to which it points is one of comparison. Ratio |
How significant is the removal of the pre-commencement function, when it is seen in the context of the Act as a whole? If the removal has an end and purpose of its own, that will be one thing. Ratio |
It will be outside competence. Ratio |
If its purpose or effect is merely subsidiary to something else in the Act, and its consequence when it is put into effect can be seen to be minor or unimportant in the context of the Act as a whole, that will be another. Ratio |
It can then be regarded as merely incidental to, or consequential on, the purpose that the Bill seeks to achieve. Ratio |
The provision in question meets this test. Ratio |
So it is within competence. Ratio |
I also agree with what he says about section 9. Ratio |
On the face of it, the power that it gives to add or subtract from the list of enactments is open-ended. Ratio |
This, no doubt, is why the UK Government has thought it right to raise the question whether it too is within competence. Ratio |
But it falls to be read as narrowly as is required for it to be within competence, if such a reading is possible, and to have effect accordingly: see section 154(2). Ratio |
That can be done by reading it in a way that brings it within the exception in paragraph 6(1)(b) of Part 3 of Schedule 7. Ratio |
The Assembly does not have legislative competence to confer on the Welsh Ministers powers that are wider than those which have been given to it by the 2006 Act. Ratio |
So it will be open to the Welsh Ministers to add to the list of enactments in Part 1 of Schedule 1 to the Bill by removing a pre-commencement function of a Minister of the Crown without the consent of the Secretary of State only if it meets the test in paragraph 6(1)(b). Ratio |
I see no difficulty in reading section 9 in this way, and in holding that the power is to have effect subject to that limitation. Ratio |
So it too is within competence. Ratio |
Practice Ratio |
The method which the Attorney General used for the bringing of this reference was to file a Notice of Appeal in the form for applications for permission to appeal or appeals which is described as Form 1 in UKSC Practice Direction 7.3.2 and its Annex. Ratio |
It named the National Assembly for Wales as the only respondent and its Chief Legal Advisor, on whom the Notice of Appeal was served, as its solicitor. Ratio |
The Counsel General for Wales and the Attorney General for Northern Ireland were later joined as respondents at their own request. Ratio |
The use of this procedure raises two questions. Ratio |
The first is as to the correct procedure that should be adopted under Rule 41 of the Supreme Court Rules 2009 and Practice Direction 10 for the making of a reference under section 112 of the 2006 Act and its counterparts in Scotland and Northern Ireland. Ratio |
The second has two parts. Ratio |
First, was it appropriate for the Assembly to be called as a respondent to these proceedings? Second, what are the circumstances in which the Assembly, although not called as respondent, would have standing to appear in proceedings which raise questions as to the legislative competence of one of its enactments? Ratio |
The only previous example of a reference being made to the Supreme Court of a Bill passed by a devolved legislature is a reference that was made by the Attorney General for Northern Ireland in 2011. Ratio |
As was noted in AXA General Insurance Co Ltd v Lord Advocate [2012] 1 AC 868, para 15, he referred the question whether the Damages (Asbestos-related Conditions) (Northern Ireland) Bill was within the competence of the Northern Ireland Assembly for pre- enactment scrutiny under section 11 of the Northern Ireland Act 19... |
He too used Form 1 for this purpose and the reference was served on the Northern Ireland Assembly, which was named on the form as the only respondent. Ratio |
The Northern Ireland Assembly responded by serving a notice of objection indicating its opposition to the grounds of the reference. Ratio |
It used the form which is described as Form 3 in Practice Direction 7.3.2 and its Annex. Ratio |
But the reference was withdrawn before the hearing of the appeal in AXA took place. Ratio |
So there was no opportunity for a discussion of the procedural issues in that case. Ratio |
(a) the reference procedure Ratio |
Rule 41 of the Supreme Court Rules 2009 (SI 2009/1603 (L17)) provides: (2) A reference made by the relevant officer is made by filing the reference and by serving a copy on any other relevant officer who is not already a party and who has a potential interest in the proceedings. STA |
[emphasis added] (3) A reference must state the question or issue to be decided by the Court. STA |
(4) The Registrar shall give notice of the question or issue to the appropriate relevant officer where that officer is not already a party to any proceedings. STA |
Rule 3(2) of the Supreme Court Rules defines the expression relevant officer as meaning, in relation to proceedings in England and Wales, the Attorney General and, in relation to proceedings that particularly affect Wales, the Counsel General to the Welsh Assembly Government. STA |
The procedure to be used in cases which raise devolution issues is dealt with in Practice Direction 10. Ratio |
It is pointed out in Practice Direction 10.1.3 that such a case can reach the Supreme Court in four ways, one of which is by way of a reference by a relevant officer. Ratio |
Practice Direction 10.1.4 repeats the definition of the expression relevant officer which is set out in Rule 3(2). Ratio |
The four ways in which a devolution issue may reach the Supreme Court are then dealt with under four separate headings. Ratio |
Practice Direction 10.2, under the heading references of a question by a relevant officer, states: 10.2.1 A reference of a question by a relevant officer is made by filing the reference, and serving a copy on any other relevant officer who is not already a party and who has a potential interest in the proceedings, with... |
[emphasis added] 10.2.2 The reference should state the question to be determined with respect to the proposed Order in Council, proposed Assembly Measure or Bill to which the reference relates; whether it applies to the whole Order in Council, proposed Assembly Measure or Bill or to a provision of it, and the reference... |
10.2.3 Any relevant officer (other than the one making the reference) who wishes to participate in the proceedings shall within 7 days of service of the reference on him notify the Registrar and the other parties. Ratio |
Any relevant officer who gives notice automatically becomes a respondent to the proceedings. Ratio |
As these provisions make clear, the reference should be served on any other relevant officer. Ratio |
Those words are to be read together with the definition of the expression relevant officer in Rule 3(2) and Practice Direction 10.1.4. Ratio |
There ought not to have been any room for doubt that, in the case of a reference by the Attorney General of a Bill of the National Assembly for Wales, the Counsel General had a potential interest in the proceedings. Ratio |
So the reference should have been served on him. Ratio |
It should not have been served on the Assembly which is not referred to in any of these provisions. Ratio |
It is not a relevant officer. Ratio |
It should also be noted that, in contrast to what is set out in the part of Practice Direction 10 which deals with appeals to the Supreme Court (see Practice Direction 10.3.5), the procedure set out in Practice Direction 10.2 does not lay down any particular form for use in such proceedings: see also Practice Direction... |
These Practice Directions do not refer to Form 1. Ratio |
That form is designed for use only for notices of appeal and applications for permission to appeal. Ratio |
As the wording of Practice Direction 7.3.2 makes clear, it is not designed for use in the case of references. Ratio |
Counsel for the Attorney General submitted that these provisions fail to identify who is the respondent to a section 112 reference, and that there is a lack of coherence in the combination of Rule 41 and Practice Direction 10. ARG |
I do not think that this does justice to the provisions which I have quoted. Ratio |
They require service of the reference on any other relevant officer, and they provide that he will automatically become a respondent to the proceedings if he notifies the Registrar that he wishes to participate in them. Ratio |
The phrase any other relevant officer reflects the fact that section 112 does not state that there must be a respondent to a reference that is made under it. Ratio |
Circumstances can be envisaged where that would not be appropriate. Ratio |
It would, for example, be open to the Counsel General, to make a reference of a question about legislative competency in which no other relevant officer has an interest on the ground, for example, that a provision was incompatible with the Convention rights: see section 108(6)(c). Ratio |
The court will, of course, benefit from the argument of a contradictor. Ratio |
But it is not in a position to compel the appearance of a law officer who does not wish to participate. Ratio |
What it seeks to ensure is that any other relevant officer is notified. Ratio |
What then happens is up to the relevant officer. Ratio |
It should be understood therefore (a) that proceedings on a reference under section 112 of the 2006 Act and its counterparts in Scotland and Northern Ireland are proceedings sui generis and (b) that they should be served on, and only on, any other relevant officer in his capacity as a relevant officer, not as a respond... |
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