Over the last 25 years, Supreme Court rulings have played a key role in how devolution and the law-making process are understood and work in Wales.
The cases have not only influenced the operation of specific pieces of legislation, but have also influenced the design of the devolution settlement.
This article explores key rulings from the Supreme Court.
When will a case reach the Supreme Court?
The legislative competence of the Senedd (its remit to make law) is defined in the Government of Wales Act 2006 (GoWA).
If legislative competence is called into question, the Supreme Court must rule on the extent of the Senedd’s legal powers.
A case reaches the Supreme Court when a Bill is referred by a law officer. Either the Counsel General for Wales (Welsh Government) or the Attorney General for England and Wales (UK Government) may refer a Bill after it has been passed by the Senedd and before it is submitted for Royal Assent.
There can also be statutory references or appeal of a “devolution issue”, or the appeal of cases from lower courts through the normal judicial process.
Initial successes for the Welsh Government
Two initial rulings of the Supreme Court found in the Welsh Government’s favour, and had significant implications for the interpretation of the devolution settlement.
Local Government (Byelaws) Wales Bill
In 2012, the then Attorney General, Dominic Grieve MP, referred the Local Government Byelaws (Wales) Bill to the Court. It was the first time that powers under Section 112 of GoWA had been used to refer a Bill.
The Bill was the first to be passed by the Assembly since it had gained enhanced primary legislative powers in 2011.
The Attorney General’s referral related to Sections 6 and 9 of the Bill, which removed the need for the UK Secretary of State to confirm byelaws.
The Supreme Court ruled unanimously that the Assembly did have the legislative competence to remove the Secretary of State’s confirmatory powers, stating that the removal:
would be incidental to, and consequential on, the primary purpose of removing the need for confirmation by the Welsh Ministers of any byelaw made under the scheduled enactments
and that
the primary purpose of the Bill cannot be achieved without that removal.
The ruling was accepted by both parties, with the UK Government stating it helped with an understating “as to where the devolution boundary lies”.
Agricultural Sector (Wales) Bill
In 2013, the Assembly passed the Agricultural Sector (Wales) Bill in response to the UK Government’s abolition of the Agricultural Wages Board for England and Wales. Through the Bill, the Welsh Government intended to retain a system for regulating agricultural workers’ wages.
The Attorney General referred the Bill to the Supreme Court, arguing that it related to the reserved areas of employment and industrial relations, rather than agriculture.
The Supreme Court held that the Bill was within the legislative competence of the Assembly, deciding that it was necessary to look beyond the “dictionary definition” of agriculture, and to consider the intentions of the Bill. In this context, the Court considered that agriculture referred to “industry or economic activity of agriculture in all its aspects”.
The Court also noted that neither “employment” nor “industrial relations” were listed as exceptions to the Assembly’s legislative competence, while other aspects of employment (such as pension schemes) were. It cited this as evidence that there was no intention by the UK Parliament to create more general limitations on the Assembly’s competence in this area.
The Court ruled that the Assembly could legislate for subjects not specified as exemptions, or “silent subjects”, as long as the main purpose of a Bill “fairly and realistically” related to a devolved subject.
Constitutional lawyer Ann Sherlock labelled this ruling a “significant clarification” of the Assembly’s competence.
First Minister Carwyn Jones AM welcomed the “exceptionally important judgment”, but suggested that confusion over competence was cause to move the Assembly to a reserved powers model (more below).
Pushing the limits
In 2015, for the first time, the Supreme Court ruled that a Bill was outside of the Assembly’s competence.
Recovery of Medical Costs for Asbestos Diseases (Wales) Bill
The Bill would have enabled the Welsh Ministers to recover costs incurred by NHS Wales in providing treatment to victims of asbestos-related diseases. Those costs would be recovered from whoever was required to pay compensation to the victims.
The Bill was referred to the Supreme Court by the Welsh Government’s Counsel General, Theodore Huckle QC. This was the first time a Counsel General had referred a Bill. Though the Counsel General believed the Bill to be within competence, he stated it was appropriate “to have the issue of the competence of this Bill clearly resolved before the Bill comes into force”, given the Assembly’s competence had been disputed by others. It was felt better for the Supreme Court to rule in this way, rather than allowing those with private interests to challenge the Bill post-enactment.
The Supreme Court ruled that the Bill was not within the Assembly’s legislative competence and was incompatible with the European Convention on Human Rights due to its impact on compensators’ rights. However, there was disagreement among the judges as to the extent and scope of the competence issues.
From conferred to reserved powers
The relative frequency at which Senedd legislation was referred to the Supreme Court influenced discussions on reforming the devolution settlement.
The second report of the Silk Commission recommended moving from a conferred-powers model to a reserved-powers model of devolution, in which “the settlement would set out clearly the limits of devolved competence” and law-makers could “legislate with greater confidence”.
First Minister Carwyn Jones AM stated that the Welsh Government “fully supported” the recommendation, but cautioned that there was no case for removing powers from the Assembly through the process.
The Assembly’s Constitutional and Legislative Affairs Committee expressed concerns that the UK Government’s proposed Wales Bill would have converted “silent subjects” identified by the Court into reservations and therefore lead to roll-back of competence, in effect reversing the Agricultural Sector (Wales) Bill ruling.
Following the passage of the Wales Act 2017, the Assembly moved to a reserved-powers model; all areas were devolved, except those listed in Schedules 7A and 7B.
While the move led to a reduction in Supreme Court cases, cases on the competency of the Scottish Parliament (where a reserved-powers model has always been in place) demonstrate that escalation is still possible.
Brexit and the Supreme Court
Since 2016, disagreements over the process of leaving the EU and the resettlement of powers have led to legal challenges from both the devolved governments and the UK Government. Subsequent rulings have led to further important clarifications.
In particular, in 2017, the Supreme Court ruled that the Sewel Convention cannot be enforced by legal action.
For more information, see our Leaving the EU article in this series.
Interpreting devolution
The Supreme Court’s role in interpreting the devolution settlement in Wales has been, and remains, significant. Recent discussions and evidence relating to whether the Senedd Cymru (Electoral Candidate Lists) Bill is within the Senedd’s legislative competence have often made reference to the Supreme Court’s ability to act as an ultimate arbiter on these matters.
Should further debates over legal boundaries arise, the Court’s rulings will likely play a key role again.
Article by Adam Cooke, Senedd Research, Welsh Parliament
