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David v Goliath – David Dixon

4 December 2012

The third week of November was one of the most momentous weeks in the history of Wales.  On the Monday the Silk Commission published its first report.  It recommends that certain tax raising powers (including the variation of income tax should such a proposal be accepted in a referendum) should be devolved to Wales.  On the Wednesday, the Supreme Court declared in Local Government Byelaws (Wales) Bill 2012 – Reference by the Attorney General for England and Wales [2012] UKSC 53 that the first bill to have completed its legislative progress through the National Assembly was within the Assembly’s legislative competence.  The Bill can now proceed to obtain Royal Assent.  Once it has the tally of primary legislation passed by the National Assembly will rise to 24: 22 Assembly Measures and 2 Assembly Acts.

That’s not much law, but it’s a start – and there are also thousands of statutory instruments which apply to Wales but not to England.  These laws which the Assembly and Welsh Ministers have made are only part of the body of distinct Welsh laws: some statutes passed by the UK Parliament (and many of its statutory instruments too) apply only to Wales, either because that was the original intention or because Westminster has repealed those statutes for England but they still apply to Wales.

The divergence of the law in Wales from the law in England arises from the legislative activity of Westminster as well as the legislative activity (or inertia) of Cardiff Bay.  So the body of distinct Welsh law consists of much more than the tiny amount of primary legislation passed by the Assembly.  Nevertheless, it is a considerable (and symbolic) achievement by the Counsel General and his team to defeat the Attorney General’s challenge to the legality of this Bill and they deserve congratulations.  Once again, David saw off Goliath’s challenge.

I mention this because the primary legislation enacted by the Assembly, if valid, is equal to UK statute law.  Subject to the provisions of Government of Wales Act 2006 Part 4, “an Assembly Act may make any provision that could be made by an Act of Parliament” GoWA 2006 s 108(1).  Whether one likes it or not, whether one approves of devolution or not, whether one likes the legislation or its legislators or not, this is the law.  And those who respect the rule of law should respect this legislation too.

Sadly, during the year and a half in which the Assembly has been able to pass primary legislation without requiring the prior permission of the UK Parliament to do so, only two Bills have completed their legislative passage through the Assembly and both have been referred by the Wales Office of the UK government to the Attorney General.  He referred the first to the Supreme Court but not the second (which is the National Assembly for Wales (Official Languages) Act 2012).  This record suggests a lack of respect for the National Assembly’s legislation which undermines Welsh devolution.

Scotland Act 1998 s 33 enables the Lord Advocate to refer Scottish Bills to the Supreme Court before they receive Royal Assent if he thinks that the Scottish Parliament has exceeded its legislative competence.  This power has never been exercised in the 13½ years of the existence of the Scottish Parliament.  Why?  In Scotland, a Bill is outside the Scottish Parliament’s legislative competence if one of its provisions relates to a matter reserved to the UK Parliament in Scotland Act 1998 Schedule 5.  Thus, the Scottish Parliament has the power to legislate unless the particular matter is reserved to the UK Parliament.  Since the Scotland Act 1998 Schedule 5 lists the provisions which are reserved to Westminster, it is simple to avoid them.  But for Wales the picture is less clear.  The Assembly only has legislative competence in its 20 subjects if the provisions of the Bill fall within GoWA 2006 s 108(4) or s 108(5) and comply with the requirements of GoWA s 108(6).  As Lord Hope stated in the Supreme Court, “This is a more cautious transfer of executive power than that which was thought appropriate for Scotland.  Not surprisingly, the question where the balance has been struck between the functions of the Welsh Ministers on the one hand and the Ministers of the Crown on the other is a sensitive one”.

Given the complications produced by the current devolution settlement for Wales it is likely that there will be future challenges by the Attorney General to the lawfulness of Welsh Bills.  In the wake of the Attorney General’s failed challenge and the consequent wasted time and public money, no wonder the First Minister has stated that when it gives evidence to the Silk Commission his Government will argue that Welsh devolution should be reformed on the basis of a reserved powers model such as that which applies to Scotland.

David Dixon is a senior lecturer at Cardiff Law School and teaches on the LPC.  He represents the constituency of South Wales on the council of the Law Society, is a member of the Law Society’s education and training committee and chairs the Law Society’s Wales committee.