I can’t be the only one to be surprised at the row rumbling on at the Supreme Court over whether or not the National Assembly for Wales has exceeded its jurisdiction in its first piece of primary legislation.
That law – sexily entitled “The Local Government (Byelaws) (Wales) Bill” – aims to simplify procedures for making and enforcing local authority byelaws. But it turns out that the Bill would have the effect of cutting out the Secretary of State for Wales from the process of approving byelaws in Wales. And there’s the rub – the National Assembly may not alter the role of any Secretary of State without their express consent unless those powers are incidental to or consequential on other provisions – and it looks as if Cheryl Gillan didn’t provide that consent. Some people have argued that the Welsh Government didn’t do much of a job in seeking it. But Alan Trench has helpfully coralled all the information that shows the extent of communication between the Welsh Government and the Secretary of State.
Alan previously described the Welsh Government’s position as weak, if not hopeless. But there’s a bit more to it. In testimony this week we’ve seen the startling revelation that the Secretary of State has used this tremendous power all of, erm, well, never, since the establishment of the National Assembly. So in 13 years, this power, which the Attorney General is so keen to retain on behalf of the Secretary of State, has remained unused.
Now we see that the Welsh Office is considering sending for the Attorney General for the second ever Bill to be passed by the National Assembly, the National Assembly for Wales (Official Languages) Bill. This is a Bill whose impacts are restricted solely to the activities of people who work in the National Assembly for Wales, but we could be keeping the Supreme Court busy yet again in the near future.
This has all coincided with a quite remarkable poll by ITV which showed that people in Wales overwhelmingly want the Welsh Government/National Assembly for Wales to have the biggest say in how Wales is run.
Now one of the few things that can be guaranteed to turn someone who is ordinarily a mild-mannered apolitical into a font of political activism is the idea that London is interfering in the business of Wales for no good purpose. And as we can see above – and as you can read in countless articles online – it appears that there is no good purpose to the Attorney General’s interventions. Given that two Unionist parties are fighting this battle, Nationalists must be rubbing their hands in glee.
As an aside, I have some sympathy with the Welsh Government’s representative Theodore Huckle QC, who argues that there should be a Welsh judge on the Supreme Court in instances where Welsh legislation is being considered. The reason there isn’t is because EnglandAndWales is one legal jurisdiction and there are three judges on the panel representing EnglandAndWales and anyway “it’s difficult to identify what constitutes a Welsh judge“.
Theodore’s answer: “We know one when we see one“.