Supreme Court judgement: Local Government Byelaws (Wales) Act 2012

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Whenever we think about law and legislation, byelaws do not usually command centre of attention. While Acts like the Equality Act 2010 and Measures like the Welsh Language (Wales) Measure 2011 grab the headlines and Regulations tackle big issues such as carrier bag charges, student grants and free prescriptions in Wales, byelaws tend to get very little attention.

However, while byelaws are directed to very local and small-scale issues, they are nonetheless very important. For example, the charges you pay for public parking spaces, the cleanliness of tattoo parlours and hairdressers, the conduct of people using public conveniences and the management of mortuaries may all be subject to regulation through byelaws.

Approving byelaws

Such byelaws are usually made by councils, but who should confirm them? Should it be the Welsh Ministers? Or a Secretary of State in Whitehall? Should it be both? The answer is none of the above – councils in Wales will soon be able to make certain byelaws without the need for anyone else to approve them.

This is the effect of the Local Government Byelaws (Wales) Act 2012, the first Act of the National Assembly for Wales. Although the Act is now law and gained Royal Assent on 29 November 2012, the main provisions of the Act will only come into force when the Welsh Ministers decide. And when that does happen, councils in Wales will be able to make certain byelaws without the need for the Welsh Ministers or a Secretary of State to approve them.

The passage of the Act hasn’t been straight forward. After the National Assembly passed the Bill, it was assumed that the next step would be to gain Royal Assent for the Bill to become an Act. But the UK Government had other ideas and challenged the Bill on the grounds that it was outside the legislative competence of the National Assembly. Enter stage the Supreme Court to settle the matter.

The ‘old’ law (i.e. the current law before the Act comes into force fully) with regard to approving byelaws made in Wales falls into two broad categories:

  1. If a statute specifies who should approve the byelaw then that specified person must approve the byelaw.
  2. If the statute is silent as to who should approve the byelaw, then either the Welsh Ministers or the Secretary of State may approve the byelaw.

The byelaws specified in the Act that are within category 1 posed no problem – the byelaws had been carefully chosen so that the specified persons were the Welsh Ministers and the main purpose of the Act is to remove the need for the approval of the Welsh Ministers.

However, many byelaws specified in the Act are within category 2 which means that the power of approval is exercised by the Welsh Ministers and the Secretary of State concurrently – in other words it is open to either the Welsh Ministers or the Secretary of State to exercise approval. It need not be both.

For example, section 198 of the Public Health Act 1936 provides that a local authority may make byelaws with respect to the management of mortuaries. However, section 198 is silent as to who should approve any such byelaws, in which case the Local Government Act 1972 sets out the default position that the Welsh Ministers or the Secretary of State may approve the byelaw.

Legislative competence of the National Assembly

The primary purpose of the Act is to remove the need for the approval of Welsh Ministers (achieved by section 6) as part of an overall streamlining and modernising of the way in which byelaws are made in Wales. While there was no problem with removing the Welsh Ministers’ powers of approval, where did this leave the Secretary of State’s concurrent powers of approval? Could the  National Assembly pass an Act which took away the approval powers of both the Welsh Ministers and the Secretary of State?

As a general rule, the National Assembly cannot interfere with the powers of the Secretary State. However, in these circumstances the Supreme Court held that the National Assembly did have legislative competence to pass this Act which removed the approval powers of both the Welsh Ministers and the Secretary of State. The reason for this was that the removal of the Secretary of State powers of approval was incidental to, and consequential on, the primary purpose of the Act. The Court expanded on its reasoning as follows:

  • The primary purpose of the Act cannot be achieved without the removal of the Secretary of State powers of approval. The streamlining and modernising purpose of the Act would be undermined if the Secretary of State powers of approval remained. Lord Neuberger said that ‘There would be no point in removing the Welsh Minister’s confirmatory function…unless the Secretary of State’s concurrent power was also disposed of’. To decide otherwise would be bizarre.
  • If the Act was giving a blanket approval by the Welsh Ministers in advance then the Secretary of State powers of approval would be redundant. This highlighted the oddity of the Secretary of State approval powers surviving the removal of the Welsh Ministers’ approval powers.
  • Because the Welsh Government had carefully chosen the byelaws that were covered by the Act, the only power actually taken away from the Secretary of State was the default power attached to byelaws within category 2 above. Since this power is only given because no other statute confers that power on any other body, this supported the notion that it is not an ‘important’ power.
  • The byelaws in question had always been approved by the Welsh Ministers rather than a Secretary of State. Therefore, given that the purpose of the Act is to remove the requirement for the approval of the Welsh Ministers and to streamline the byelaw process, ‘it would be positively perverse if the Secretary of State should retain the confirmatory function when the Welsh Ministers have disclaimed their confirmatory function’.
  • The Act also established new concurrent powers in relation to other byelaws (i.e. byelaws not specified in the Act). With regard to those other byelaws, the Act provided that they could be approved by the Welsh Ministers and the Secretary of State acting concurrently. This reinforced the argument that the Secretary of State’s current power of approval would be redundant once the Act came into force fully.
  • Tucked away in paragraph 6(1)(b) of Part 3 of Schedule 7 to the Government of Wales Act 2006 is a very important power of the National Assembly. Although there is a general prohibition on the National Assembly from interfering with the powers of a Secretary of State, paragraph 6(1)(b) allows a provision of an Act of the Assembly to remove or modify the powers of a Secretary of State provided that the provision is incidental to, or consequential on, another provision of the Act of the Assembly. If section 6 of the Act wasn’t an example of a provision that was incidental or consequential, then nothing was (in which case the power in paragraph 6(1)(b) would have no real effect).

The UK Government accepted that a Secretary of State would never seek to exercise its approval powers in relation to the byelaws already specified in the Act. In that sense, the UK Government did not object to section 6 and the removal of the Secretary of State approval powers because the Secretary of State did not want to exercise its approval powers in relation to the list of specific byelaws in Schedule 1 to the Act.

However, the UK Government’s real concern was with section 9 of the Act which allowed the Welsh Ministers to add to or subtract from the list of byelaws in Schedule 1 to the Act (and those byelaws added would then be subject to section 6 and not require any approval).

On the face of it, section 9 gives an open-ended power for the Welsh Ministers to add or subtract from the list of byelaws that do not require any approval. However, if there is doubt as to whether a provision of an Act of the Assembly (such as section 9) is within the legislative competence of the National Assembly, then the provision ‘is to be read as narrowly as is required for it to be within competence or within the powers, if such a reading is possible, and is to have effect accordingly’ (section 154 of the Government of Wales Act 2006).

By reading section 9 in a narrow sense, it could be brought within paragraph 6(1)(b). In other words, the Welsh Ministers can only add to the list of bylaws that do not require approval to the extent that adding to the list is incidental to, or consequential on, any other provision in the Act. As Lord Neuberger said in the leading judgment, ‘Although it is perfectly true that there are no express words in section 9 which limit its scope in this way, I am satisfied that it does have such limited effect.

Subject to that very important limitation, the Act was within the legislative competence of the National Assembly. In reality, this was not a setback for the UK Government because any byelaws added to the list by the Welsh Ministers would be subject to the same limitations as those already specified in the Act, and the UK Government had no objection to the byelaws already specified in the Act. As the Supreme Court press release stated:

‘The outcome of this reference is in favour of the Assembly, but it cannot be regarded as a setback in practical terms for the Secretary of State, because the conclusion the Supreme Court has reached as to the effect of section 9 of the Bill is one which reflects the terms on which the Secretary of State was prepared to give consent to section 6 of the Bill.’

Comment

The effect of the Local Government Byelaws (Wales) Act 2012 is that councils in Wales will soon be able to make byelaws without the need for approval from the Welsh Ministers or a Secretary of State.

The Act was not intended to be a controversial or seismic piece of legislation. However, the challenge in the Supreme Court raised some fascinating questions of constitutional law. The case is also an excellent test of how devolution is understood – it covers the devolution of primary legislative powers to the National Assembly, it covers the transfer of secondary legislative powers to the Welsh Ministers and then considers how those powers can filter down to the level of county councils, county borough councils and community councils in Wales.

And as a note of reassurance, if you sometimes get mixed up between the Welsh Ministers, the Welsh Government and the National Assembly then you are in good company – some of the Supreme Court judges fell into the same trap during the course of this hearing.