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

UK prisoner voting: Grieve and Grayling’s dilemma

Dominic Grieve QC MP and Chris Grayling MP

”No one should be in any doubt, prisoners are not getting the vote under this government”. These were the words uttered by David Cameron at Prime Minister’s Questions nearly a fortnight ago. It was in response to a question by Labour backbencher, Derek Twigg MP, as fresh revelations emerged that the UK Government may be forced to partially repeal its ban on prisoner voting (PV). Only two hours earlier, the Attorney-General, Dominic Grieve QC MP, stated something quite different. Appearing before the Commons Justice Committee, the Government’s ‘top lawyer’ insisted he had “…absolutely no doubt it [ignoring a 2005 European Court of Human Rights (ECtHR) ruling on PV] would be seen by other countries as a move away from our strict adherence to human rights laws.” And that such an act would possibly see a UK exit from the Council of Europe for good.

This apparent tension in rhetoric is of great interest to us here at The Constitution Unit. Though our current Human Rights Act and Parliament research project is more domestic in scope, action by the UK Government to come into line with Strasbourg‘s previous rulings in the case of PV internationally would also be momentous domestically. It has been seven years since a ECtHR ruling (Hirst v United Kingdom (2005) 42 E.H.R.R. 41 (ECHR (Grand Chamber)) (and five years since a UK ruling (Smith v Scott (2007) Registration Appeal Court (Scotland); CSIH 9)) interpreted Section 3 Clause 1 of the UK’s Representation of the People Act 1983 as breaching am individual’s  right to participate in free elections (Art 3, Protocol no. 1 ECHR).  A fresh call by the ECtHR this May has added new urgency to Hirst. In Scoppola v Italy (No3 [2012](ECHR (Grand Chamber), the UK was given six months to bring forth legislation to implement a partial repeal of its ban – possibly adding offenders of ‘petty’ crimes or those on the road to rehabilitation to the franchise.

This burgeoning impetus and willingness by Grieve may peter out, however. One substantial hurdle is time. As Patrick Wintour noted, a draft Bill originating from the Ministry of Justice will most likely take two years to pass. This would bring the measure under close scrutiny by an already euro-sceptic electorate at the next election.  The second greatest hurdle is Parliament. When senior Tory backbencher, David Davis, and former Labour Lord Chancellor, Jack Straw, tabled a motion in February urging Ministers to defy Hirst, it was moved by a vote 234 to 22. One suspects the Coalition Government does not want another sizeable EU-related rebellion on its hands.

To conclude then, while Grieve has given fresh hope that this Government will grasp the PV-issue by both hands, the task of shifting an intransigent Prime Minister, Parliament and electorate away from its PV scepticism is huge.  As he and Lord Chancellor, Chris Grayling, have acknowledged, however, the legal implications of inaction could also potentially be disastrous. This chapter in the PV saga has therefore served to expose a key dilemma facing Grieve and Grayling: to remain politically defiant or push ahead with reform.  Which route will they take? The Attorney General and Lord Chancellor have until the 23rd of this month to decide.

WA