The dragon roars? Welsh Devolution and the UK Supreme Court

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It is rare that news about Welsh devolution trumps Scotland. As we move ever closer towards a Scottish referendum on independence, we would be forgiven in thinking that relations with the Welsh Government are a far more sedate affair.

Last year, this illusion, if not blown wide open, received a sizeable dent. On 31st July, UK Attorney General, Dominic Grieve QC, referred what appeared to be a fairly innocuous bill to the UK Supreme Court (UKSC) amid concerns that Welsh Assembly had exceeded its constitutional remit by changing the powers of UK Ministers. The offending legislation, the Local Government Byelaws (Wales) Bill 2011, if left unamended, would have given the Welsh local authorities the power to make and enforce local byelaws – absolving them from approval and consent mechanisms shared with the Westminster Government in the Local Government Act 1972 and Government of Wales Act 2006. This would have been the first bill passed under new powers of primary legislation granted in 2011. It was also the first bill from either the Cardiff or Holyrood legislatures to be referred to the UKSC, hence its double constitutional importance.

The UK Attorney General’s complaint was not upheld by the UKSC. In a unanimous decision last November, the Court ruled the offending bill did not exceed the Assembly’s powers. This meant that the bill’s principal aims, to reform byelaw procedures to exclude Ministerial confirmation and to restate Wales’ general power to make byelaws (among others), stood. In particular, Lord Neuberger found clause 6, which effectively removed the separate need of Secretaries of State to confirm new byelaws, to be ‘incidental’ and secondary to the primary purpose of removing Welsh Minister’s confirmation. In addition, Lord Neuberger argued that the power conferred on the Welsh Executive in clause 9, which allows Welsh Ministers to regulate the number of byelaws and the bodies that make them, removed the Secretary of State’s function in the matter but made no further, disproportionate incursion.

The upshot of this case is not just historic, as noted above, but also highlights how the stakes of Welsh devolution have increased. In a 2011 referendum, 63.49% of Welsh citizens agreed to extend the ability of its national assembly to make laws in twenty new areas. Moreover, on 19th November 2012, Paul Silk, a House of Commons Clerk, recommended that the Welsh Government should have more tax-raising powers and be able to borrow to pay for new infrastructure. These signal substantial gains for a nation that is often viewed as the unequal, evolutionary partner of the 1999 devolution settlement.

Everything is not positive. As Devolution expert and Constitution Unit fellow, Alan Trench points out Cardiff was bruising for a fight in the 2012 UKSC case. Reminders of the changes that needed to be made to the bill by the Welsh Office were repeatedly ignored by the Welsh Executive. Moreover, it could also be argued that the Welsh Government would have won either way; lose and it bolsters complaints over the inadequacy of new powers, win and it establishes a favourable precedence in constitutional adjudication between Westminster and Cardiff.

To conclude, then, it would be naïve to characterise current Anglo-Welsh relations as somehow more harmonious when compared to Scotland. As shown in the UKSC case, tensions still simmer. Political anoraks are therefore well-warned. When the Silk Commission recommends new constitutional powers for Wales in spring 2014, the Welsh dragon may just roar again.

WA

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