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He will become a respondent if, and only if, he notifies the Registrar that he wishes to participate. Ratio |
There is no requirement for the reference to be served on the National Assembly, although Practice Direction 10.2.6 states that it must be notified. Ratio |
Notification also should be given to the Clerk of the Assembly appointed under section 26. Ratio |
This is because it is her function to submit the Bill for Royal Assent under section 115. Ratio |
She may not do this if a reference has been made and not yet disposed of by the Supreme Court: section 115(2). Ratio |
The Presiding Officer has the same function in Scotland, and is under the same prohibition, with regard to Acts of the Scottish Parliament under section 32(2) of the 1998 Act; see, as regards Northern Ireland, section 11(2) of the Northern Ireland Act 1998. Ratio |
No form has been laid down for use in the case of references. Ratio |
So it is open to the law officer or court, on making the reference, to adopt whatever style and layout is thought to be most appropriate in the circumstances. Ratio |
The Registrar must however be provided with the following information for administrative purposes: (a) the names, addresses and contact details of the party making the reference and his legal representatives; (b) the names, addresses and contact details of any relevant officer on whom the reference has been served and ... |
These details should be set out in a covering document, to which the reference and any accompanying documents should be attached. Ratio |
The Practice Directions are kept under continuous review and amended from time as required. Ratio |
Amendments are needed to take account of changes in the systems for devolution. Ratio |
For example, references to a Measure of the National Assembly for Wales in Practice Direction 10 are no longer appropriate as Part 3 of the 2006 Act has ceased to have effect. Ratio |
They will need to be deleted. Ratio |
Changes will be needed to take account of a new system for appeals to the Supreme Court in devolution questions arising in criminal cases under the Scotland Act 2012 which are classified as compatibility issues. Ratio |
Account will be also have to be taken of the points mentioned in this judgment. Ratio |
A revised version of the Practice Directions will be issued in due course. Ratio |
(b) participation of the Assembly Ratio |
The 2006 Act confers no legal personality on the National Assembly for Wales. Ratio |
Instead the National Assembly for Wales Commission was established by section 27, which does have legal personality. Ratio |
The Commission has the duty of providing the Assembly with the property, staff and premises required for its purposes: section 27(5). Ratio |
Further provisions about the Commission are set out in Schedule 2 to the 2006 Act. Ratio |
Among them is paragraph 4 which sets out its powers. Ratio |
These include, in particular, entering into contracts, charging for goods and services, investing sums not immediately required for its functions and accepting gifts: paragraph 4(2). Ratio |
There is no indication either in section 27 itself or in the Schedule that it was contemplated that either the Assembly or the Commission should have the right to institute, defend or appear in legal proceedings in which the legislative competence of a Bill passed by the Assembly was under scrutiny. Ratio |
Section 112(1) of the 2006 Act confers the function of referring a question about legislative competence on the Counsel General or the Attorney General. Ratio |
The Counsel General represents the interests of the Welsh Ministers on the one hand and the Attorney General represents the interests of the Ministers of the Crown on the other. Ratio |
So their positions under this provision can be regarded as reciprocal. Ratio |
Each can be taken to have the right to appear in proceedings raised by the other, which he can exercise if he wishes to do so. Ratio |
References to the right of the Counsel General to bring and defend proceedings are also to be found in Schedule 9: see, for example, paragraphs 4, 13, 14 and 30. Ratio |
No reference is made anywhere in such terms to the Assembly or the Commission. Ratio |
In Adams v Advocate General 2003 SC 171 a challenge was made by way of a petition for judicial review to the validity of the Protection of Wild Mammals (Scotland) Act 2002, which was an Act of the Scottish Parliament. PRE |
Among the questions raised was whether the Act was outside the Parliaments legislative competence. PRE |
The Advocate General for Scotland lodged answers in which she contended that the Scottish Parliament was the appropriate respondent and that, since proceedings instituted against the Parliament must be instituted against the Parliamentary corporation in terms of section 40(1) of the 1998 Act, the corporation ought to h... |
Lord Nimmo Smith rejected this contention: see para 31. PRE |
He said that the proceedings were not proceedings against the Parliament within the meaning of section 40(1), as by the stage when they were brought the Act had passed out of its hands. PRE |
Appearing as a contradictor did not appear to be one of the corporations functions, and it was clear from the scheme of the Act that the Lord Advocate, as the Scottish law officer acting in the public interest, was the appropriate person to perform that role. PRE |
I would apply the same reasoning to a case where the challenge to legislative competence was made after a Bill had been enacted and become an Act of the Assembly. Ratio |
The situation in this case is different, as the Bill is still in the hands of the Clerk. Ratio |
So it cannot be said to have passed out of the hands of the Assembly. Ratio |
But the more important point is that appearing as a contradictor to a challenge of that kind is not one of the Commissions functions under the 2006 Act. Ratio |
The way that Act has set out its functions and those of the Counsel General must be respected. Ratio |
The appropriate person to represent the public interest in resisting a challenge of that kind is the Counsel General, whose functions include making appropriate representations about any matter affecting Wales: section 62. Ratio |
The scope that is given to him by that section makes any intervention by the Assembly or the Commission in such proceedings unnecessary. Ratio |
This is not to say that the Assembly or the Commission may not have standing to appear in proceedings in which such questions are raised. Ratio |
There may be cases where the views of the Assembly or the Commission, one way or the other, might be of assistance. Ratio |
In that event the court would be willing to give permission to these bodies, or either of them, to intervene under Rule 26 if it was asked to do so. Ratio |
This should not be regarded, however, as detracting from the rule that the appropriate person on whom such proceedings should be served is the Counsel General or, if the proceedings are brought by the Counsel General, the Attorney General. Ratio |
Conclusion RPC |
For the reasons given by Lord Neuberger, I would determine this reference by declaring that sections 6 and 9 of the Local Government Byelaws (Wales) Bill 2012 are within the legislative competence of the Assembly. RPC |
We are asked in this case to reconcile the irreconcilable. Ratio |
On the one hand, there is the interest of a vulnerable young woman (X) who made an allegation in confidence to the authorities that while she was a child she had been seriously sexually abused by the father of a little girl (A) who is now aged 10. Ratio |
On the other hand we have the interests of that little girl, her mother (M) and her father (F), in having that allegation properly investigated and tested. Ratio |
These interests are not only private to the people involved. Ratio |
There are also public interests, on the one hand, in maintaining the confidentiality of this kind of communication, and, on the other, in the fair and open conduct of legal disputes. Ratio |
On both sides there is a public interest in protecting both children and vulnerable young adults from the risk of harm. Ratio |
The history FAC |
M, who is British, and F, who is Australian, married in 2000 and lived in England. FAC |
A was born in June 2002. FAC |
M and F separated in December 2002. FAC |
A remained living with M and F returned to live in Australia in 2003. FAC |
He applied for contact with A and there have since been six court hearings and six contact orders designed to ensure that A could see her father when he came to England. FAC |
The most recent of these, made in February 2009, provided for A to stay with her father during his expected visits to England in February and summer 2010 and in later years. FAC |
In late 2009, X alleged that she had been seriously sexually abused by F when she was a young child. FAC |
This account was first given to some adults she knew, who reported the matter to the local childrens services authority. FAC |
Social workers investigated and formed the view that the allegations could be true. FAC |
X was however adamant that she did not want any action to be taken on her allegations or her identity revealed to anyone. FAC |
In March 2010, knowing that F would be coming to England to see his daughter, the local authority informed M that a young adult had made serious allegations against F which the authority regarded as credible and that she should take steps to protect A from the risk of sexual abuse by F. After some keep safe work with A... |
In May 2010, M applied to vary the contact order made in February 2009. FAC |
The county court ordered the local authority to disclose the information about the allegations in its possession to the parties. FAC |
The local authority resisted this because they wished to preserve Xs confidence and her level of distress indicated that revealing her identity would expose her to the risk of further serious emotional harm. FAC |
They recommended that contact between A and F be supervised pending the resolution of the issue of whether F presented a risk to A. The contact order was varied to this effect in September 2010. FAC |
After an inordinate delay, the proceedings were transferred to the High Court and A was joined as a party to the proceedings, represented by a Childrens Guardian. FAC |
When the matter eventually came before Peter Jackson J in September 2011, he adjourned it so that a report could be obtained from Dr W, a consultant psychiatrist who has been treating X since 2010, and X could be informed both of the advantages to A of her taking part in the proceedings and of the measures available to... |
In January 2012, Dr W produced two reports, one a full report reviewing Xs medical and psychiatric records in detail and giving her answers to the specific questions asked by the judge, the other a shorter edited version but setting out her opinion and answers in identical terms. FAC |
This Court has seen only the edited version. FAC |
The salient points are as follows: (i) X has a long history of repeated presentations with medically unexplained symptoms beginning in early childhood. FAC |
(ii) There appears to be a close temporal relationship between Xs reported experiences of abuse and her presentation with episodes of medically unexplained symptoms. FAC |
(iii) Most recently, X has experienced episodes of physical illness which have at times been life-threatening. FAC |
It is the opinion of a number of medical professionals caring for her that psychological factors are, at the very least, exacerbating her symptoms. FAC |
X has received medical treatment for her condition which has had a number of damaging side-effects and there has been a significant deterioration in her health. FAC |
(iv) There does appear to be a pattern of worsening illness which coincides with the increasing pressures arising from the legal issues. FAC |
(v) X feels that her initial disclosure put in motion a chain of events which has left her feeling distrustful and lacking confidence in processes that should have been protective of her. FAC |
It is her perception that, despite reassurances about confidentiality, it has at times been breached. FAC |
She was also led to believe that she would not be required to speak of the allegations again and the present situation has undermined her confidence in the system. FAC |
(vi) In answer to the specific questions: (a) The psychological/psychiatric implications for or effects upon X regarding the disclosure of social services records to the parties: It is my opinion that disclosure of the social services records regarding X to other parties would be potentially detrimental to her health. ... |
As above, she appears to manifest psychological distress in physical terms both through medically unexplained symptoms and through the well recognised exacerbating effect of stress on a particular medical disorder. FAC |
Her physical health has deteriorated considerably recently and, at times, has deteriorated to the point of being life-threatening. FAC |
There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would put her at risk of further episodes of illness. FAC |
It would also be working against the current therapeutic strategy of trying to help minimise stress and engage with psychological therapy. FAC |
(b) The psychological/psychiatric implications for or effects upon X of being summoned to court to give oral evidence about the allegations documented in the said records: My opinion on this is as above. FAC |
Being summoned to court is one step further than disclosure and would inevitably be immensely stressful and therefore carry the same risk of deterioration in her physical (and mental) health. FAC |
(c) Xs capacity with appropriate support to participate in the court proceedings including making a statement and attending court to give evidence: I believe that X has the capacity to participate in court proceedings. FAC |
However, it should be noted that various professionals at different times have commented on the difficulty of interviewing her in relation to the alleged abuse. FAC |
My own experience of exploring these issues with her is that many of my questions were met with silence; she was clearly very uncomfortable and distressed and seemed unable to respond. FAC |
When I asked her about appearing in court she responded I can't. FAC |
(d) Xs understanding of the measures which might be put in place to protect her as a vulnerable witness: When asked about her understanding of these, X told me that she understood that she could provide evidence via video link. FAC |
However, she said that this would be a traumatic prospect for her as she understood that the alleged abuser would be able to see her face and she could not cope with this. FAC |
As above, I also think that her perception that processes so far have, to some extent, let her down means that she does not feel confident in any of the reassurances provided. FAC |
There is also a report, also dated January 2012, from her consultant physician, Dr MG, stating that X is under his care at a hospital, with a diagnosis of steroid dependent difficult asthma and steroid induced myopathy. FAC |
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