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| Who should have the power to confirm changes to dog shit fines in Wales? The "noblest court in the land" is debating it. (Pic : BBC) |
This week, the UK
Supreme Court start deliberations on the "legality" of the
Welsh Government's Local Government Byelaws Bill, which was passed by
the Assembly in July this year.
The Bill itself, as I noted when first introduced, isn't a mind-blowing bit of legislation. At heart, all it does, is make creating byelaws a bit easier (and less bureaucratic) for local authorities, and changes arrangements for setting and collecting fines.
It was the first Bill introduced to the Assembly following the March 2011 referendum, and was the first bill passed by the Assembly. So to have it "called in" is immensely embarrassing for all concerned.
Why was it called in?
The Bill, as passed, changed functions of UK Secretaries of State with relation to local byelaws. It cuts them out of the process altogether (Welsh Government ministers too), but pre-Bill, they retained a say in matters.
The problem is, the Assembly doesn't have the power to amend or remove the functions of UK Secretaries of State - even in devolved areas like local government. The UK Attorney General took issue with it, believing it was - in effect - "above the Assembly's pay grade", and blocked the Bill moving to Royal Assent.
The Supreme Court needs to make three determinations:
The Bill itself, as I noted when first introduced, isn't a mind-blowing bit of legislation. At heart, all it does, is make creating byelaws a bit easier (and less bureaucratic) for local authorities, and changes arrangements for setting and collecting fines.
It was the first Bill introduced to the Assembly following the March 2011 referendum, and was the first bill passed by the Assembly. So to have it "called in" is immensely embarrassing for all concerned.
Why was it called in?
The Bill, as passed, changed functions of UK Secretaries of State with relation to local byelaws. It cuts them out of the process altogether (Welsh Government ministers too), but pre-Bill, they retained a say in matters.
The problem is, the Assembly doesn't have the power to amend or remove the functions of UK Secretaries of State - even in devolved areas like local government. The UK Attorney General took issue with it, believing it was - in effect - "above the Assembly's pay grade", and blocked the Bill moving to Royal Assent.
The Supreme Court needs to make three determinations:
- Did the Bill remove/modify Secretary of State Functions in "Clause 6" (byelaws no longer requiring confirmation by Welsh Ministers/SoS)?
- Did the Bill do the same for "Clause 9" (power to add/remove specific byelaws no longer requiring confirmation)?
- If the answer's yes to either, is this within the competence of the National Assembly as stipulated in the Government of Wales Act 2006?
You can read a more thorough analysis of the situation by Manon George at Click on Wales, as well as Alan Trench at Devolution Matters.
How did this happen?
The buck, ultimately, has to stop with : the First Minister, the minister in charge – Carl Sargeant (Lab, Alyn & Deeside) - and the Welsh Government's chief legal adviser (Counsel General), Theodore Huckle QC.
The latter has to decide whether a Bill is within the Assembly's competence, and Carwyn Jones would count as a legal expert considering his professional background. As my title suggests, this should never have happened - but not necessarily because of any screw ups in Cardiff.
When this story was first reported back in July, the First Minister was quite right to say that this was a "totally uncontroversial piece of legislation." I mean, don't Welsh Secretaries have better things to do than deal with the minutiae of local byelaws? If the Secretary of State involved had simply consented to the changes, we wouldn't have had this court case.
Since 1999, the power to confirm byelaws has been held jointly between the Welsh Assembly/Ministers and the relevant Secretary of State. However, things have changed quite a bit since then.
In March 2011, those who bothered to vote, gave the National Assembly full law-making powers within 20 areas by a crushing majority. The Welsh Government can legitimately say that they have "a popular will" to be the sole local government legislator for Wales. Obviously, from a nationalist perspective, I'd argue that involving a UK Secretary of State is outdated and perhaps a little insulting.
The Welsh Government have argued that removing Secretary of State powers "was consequential upon, or incidental to, other provisions in the Bill."
I think that means (in English) : We didn't need to ask the Secretary of State's permission, as we were taking the same powers away from both ourselves and the SoS at the same time.
The UK Attorney General argued that just because the Bill removes powers from the Welsh Government, it doesn't mean the same powers can be removed from a UK Secretary of State.
What this means
Because of unnecessarily complex law-making and devolution provisions in Wales, I doubt this is going to be the last case of an Assembly law being "called in" - until we have legal parity with Scotland. This is an inter-governmental squabble that highlights the inherent weaknesses of the Welsh devolution settlement - and you could argue, the childishness of the Tories and Labour.
Despite the 2011 referendum result, this reeks of a belief that Wales still needs hand-holding, even to make soft Bills like this one. It's EnglandandWales' death rattle, and it's an exemplar argument in favour of a Welsh legal jurisdiction (I'll be looking in more detail at that next month).
In my opinion, joint Welsh Government/Secretary of State functions (within devolved areas) should've been removed in the Government of Wales Act 2006 as part of provisions for a referendum yes vote. It would've made things clearer, and might've saved us going through this. Thanks Peter!
How much has all this cost? And to what ends? Does David Jones really need the power to confirm changes to dog mess fines in Torfaen?
On the flipside, a "subordinate" legislature shouldn't be able to change the functions of a superior one as a matter of principle. The Welsh Government could be opening all sorts of doors by "testing the waters" here. They're probably not making friends in London either, which will come back and haunt them when they try to pass more controversial legislation like the Human Transplantation Bill.
The Welsh Government have been cheeky scamps, but they're logically (on paper) "in the right." But being morally right rarely counts for much in court. Obviously, for the sake of devolution's credibility, I hope they win.
Lose, and it'll be the biggest embarrassment for the Welsh Government and Labour since devolution, and would seriously undermine the credibility of the National Assembly as a legislature. If they can't pass a law on local byelaws because of their own errors, or you could say Westminster interference, how can they be trusted to pass laws on something "serious" like organ donation?
Big questions would also need to be asked about Welsh Government legal advice. This borders on gross incompetence. A loss would be "vote of no confidence" territory.
If the Bill is thrown out (that might not happen, even if the Welsh Government lose), it's possible that one, or both, of Theodore Huckle and Carl Sargeant would need to go. That would be harsh, but considering the wider issues, it would hard to see either stay in their posts. However, as I warned in the summer, the opposition parties have wasted that card, so neither need lose any sleep.
Even if the Welsh Government win, it would certainly mean a re-evaluation of law-making in Wales - all because UK Secretaries of State aren't willing to give up a rubber stamp.
Thanks again Peter! Cheers Cheryl!
