Sunday, August 05, 2012

Complexity of making law in Devolved Wales

I'd been intending to post about The Local Government Bylaws (Wales) Bill. Now don't just switch off. Its really quite interesting. But it does depend on your being interested in how Wales is governed. Been prompted to blog now because have just read Matt Withers' take on this in his Wales on Sunday column today.

The Bill itself is strikingly inconsequential - except that it is the first bill passed by the Welsh Government since it was granted new law making powers last year. The purpose of the bill is to give to local authorities the power to pass bye-laws. Seems rather a good idea to me - and probably most people. But in achieving its purpose, the bill removes the power from the Welsh Government and the UK Government to confirm the relevant bye-laws. The problem arises because the Welsh Government does not have the 'competence' to remove power from the UK Gov't. That is the law - as it stands now. Matt seems to think this came as a surprise to everyone. Well it was not a surprise to me. I've known this has been under discussion for a long time.

Now, I have absolutely no objection to the content of the bill becoming law. Neither would I object to changing constitutional arrangements to prevent this sort of thing happening. But the constitutional settlement must be changed first. The Secretary of State for Wales has established the Silk Commission which will be looking at just this sort of issue - after its reported on how fiscal accountability can be vested in the Welsh Government this autumn. The thing about constitutional law is that you cannot just make it up as you go along. And its very amateurish to try.

This issue is of minuscule interest. But the same sort of difficulty could arise over the Welsh Gov'ts desire to change the organ donation system to one based 'presumed consent'. A bill to do this will be of much greater interest - both to me and more widely. When this matter was first proposed by the Welsh Gov't I was implacably opposed to it - but am much less so now. In fact, if the Bill contains a legal assurance that next of kin will always have a veto, I would personally favour going further than the Welsh Government. I would like to see the next of kin of every potential organ donor being approached in a positive sympathetic manner, rather than just those who had signed some register. But this is nothing to do with the legal point. Let me say what my personal approach would be if I were to be the decision-taker. I would not object to a bill because I didn't like it, or didn't approve of it. But if the Attorney General informed me he had doubts about the Welsh Gov'ts competence in this policy area, because of its 'human rights' implications, I would oppose it - and ask the Supreme Court to decide. That's what its for. So you can see - when its comes to it, the issue is quite simple.


mairede thomas said...

I think one of the problems is that the good thing about Common Law is that it has evolved over a extensive period of time and been tested in the Courts, whereas Constitutional Reform and Legislation can happen suddenly and be, at one extreme, driven by party politics, and at the other riven with unintended consequences. Somewhere between these two poles is socially acceptable, progressive and well considered law-making.

We now have 3 layers of law makers in Wales. the WG, the UK Government and the EU.

I guess there is a even a possiblity that the Supreme Court will not be the end of this particular matter.

Anonymous said...

It is NOT quite as simple as that Glyn. Yes you are right under GoWA - the Assembly cannot go out of its way to remove powers from the SoS. However if a Bill is created and it is just sequential that the powers of the SoS are reduced (I can't remember what the correct term is!) then it is ok.
I would say that this Bill would fall into this.

I do have a few questions on this issue:
- why was it not raised at committee stage
- why didn't the Welsh Conservaties raise it
- why did the Presiding Officer say it was within the powers of the Assembly
- why didn't the Att-Gen say it was illegal the following day (as apparently he had already raised it with the WG). Rather than letting weeks pass by?

To me, this stinks of politics. And I think this is just a pre cursor to what will happen with the organ donation.

So I think the UK Gov have risked a fight which could have BIG consequences. As to me the Supreme Court can go either way. They can say that the Bill is illegal (and keep devolution narrow). OR they can say it is lawful, which would seem that GoWA06 is rather wide. This will have consequences.

Nevertheless this issue has highlighted to us once again how narrow devolution is in Wales. Whether we like it or not, the people of Wales want devolution. So we have to make it work. The only way I can see it work is if we have the Scottish model, for them it is clear what they can't do. In Wales we have a system of "you can do this, but within this you can't do this". It's far too narrow and I hope Silk realises this.

But on this issue, it stinks of politics and I just don't think this has been raised merely on a point of law. But a case was bound to happen on devolution in Wales so I'm glad we are getting it out of the way early.