Wednesday, October 10, 2012

Puleese - Not another Reference to the Supreme Court

Since the people of Wales decided in 1997 that a National Assembly for Wales was to be created, I've taken an interest in how my nation is governed. I want Wales to be governed well. So its depressing to read that another 'law' made by the National Assembly is being considered by the Attorney General as to the competence under which its been drawn up. This time it concerns the Welsh Language - or more precisely, the English Language. It seems there are doubts that the National Assembly can pass any 'law' relating to the English Language, and Dominic Grieve's view may well turn on whether the reference to English is no more than incidental to the main purpose of this 'law' (which is actually about the Welsh Language). If the Attorney General concludes that the Assembly has acted beyond its competence, the 'law' will be referred to the Supreme Court. B******  ***. Not again.

If this happens, we are facing a difficulty. The Government of Wales Act 2006 (including the changes brought about by the 2011 referendum) should be clear. I'd expected to be. That's what these well paid drafting lawyers are supposed to ensure. But it seems things are not clear at all. The first Assembly law is currently being considered, at great cost, and total mystery to the public in the Supreme Court. For this to happen once is a pity. To happen twice would be a real problem, which we would need to think about. And then there's the proposed new Assembly 'law' to change the organ donation system to come!

Personally, I'd like the National Assembly new 'laws' to be agreed. But the Attorney General must do his job. He must conclude on the basis of the Government of Wales Act. He has no choice. And its completely pointless blaming the Wales Office, the Welsh Secretary of State, or the Attorney General if 'competence' is found to be absent - though I've no doubt that some with other agendas will use it to drive wedges between Westminster and Cardiff, Making law is a complex, nit-picky, mind-numbingly boring business - but it has to be done properly. If the current law does not work, we need to look at it. This is what the Silk Commission will be doing from November.

I want to see the National Assembly working comfortably within the UK constitution. Most people want this to be the case. Lots of questions beofre us at present.


Aled Wyn said...

Time for a codified constitution for a federal Britain?

Anonymous said...

The technicality in the Government Byelaws Bill relates to precision. The dog poo by-law in the park gets it's legality from the Westminster parliament but the Government of Wales Act under clause 6 does not remove the pre-existing role of the Secretary of State. A clear explicit error.

The technicality of the Official Languages Bill does not relate to precision, but to scope. It would be reasonable to assume that all those who voted in the referendum, which gained an overwhelming majority, knew of both of the languages of Wales. One of those being English. It was the will of parliament in Westminster to grant that referendum to all those who voted knew of the relationship of both languages. The 'job' of the Attorney General is to test the explicit legality of legislation in the Supreme Court. Not to ascertain the scope of the mandate of parliament.

Scope to me is very clear. I speak English, and am very aware of it's usage in Wales. I also knew this during the referendum. I even used it to vote. Parliament was supreme in granting me that choice when it asked me to cast my vote.

Were the Supreme Court to strike down the Official Languages Bill, it would have significant consequences beyond Wales.

For example, if the Westminster Parliament had a referendum on the 'status' of the United Kingdom within the European Union, and the decision of that referendum was to 'loosen the ties'. Any subsequent Westminster legislation passed after such a referendum would have to pass a 'scope of mandate' test at the Supreme Court. It would patriate any challenge to the Westminster mandate from Strasbourg, where it now lies, to a Court House opposite the House of Commons in Parliament Square. Introducing such a test of "scope mandate" of parliament to the Supreme Court is a mechanism for undermining the supremacy of that parliament. The Welsh Government (currently) is just a branch of that.

I am writing this in English, in case the Attorney General does not grasp the 'scope' of the status of both languages in Wales. Should I ever vote in an EU referendum can I point out, in advance, to the Attorney General that I do realise that Ricotta is a type of dairy product. Diolch !

Glyn Davies said...

Two interesting comments. Aled - I think that those who support a 'federal' UK will be very happy that the Supreme Court is busy with these new Assembly 'laws' - underpinning their ambitions to seea more 'independent' Wales within a federal state.

Anon - thanks for your comment. I makes blogging worthwhile for me that someone takes the trouble to respond as you have. I am desperately in need of a discussion with a man who knows about this - and will be ringing to arrange a meeting asap. My sense is that the Supreme Court will strike down the Assembly law referred to it and that the Attorney General will not refer the second. Probably be wrong on both of course.

Anonymous said...

Surprisingly I blame the Wales Office for this. I don't know if you are still part of the "Wales team" Glyn but frankly I don't know what the Wales Office does and it seems they have nothing better to do than pull laws in. Seriously though; why the need for THREE ministers? when even before devolution we had TWO!. What did the SoS do from 9 to 5?.

The by laws one is not controversial and clearly is incidental to the use. Even the judges in the Supreme Court "raised questions about why the powers that were being removed had not been used since the advent of devolution in 1999". To me, it is the Wales Office that are picking a fight for the sake of having a fight.

Nevertheless the case does bring some good. We live in a common law jurisdiction, therefore who knows- this minor Assembly Act may very well trigger a re drawing of the parameters of Welsh devolution. Not through Parliament as it ought to be, but through our judges.

I was also disappointed to hear that there won't be a new GoWA. The current one just doesn't work - the Assembly, if it is to function properly needs a devolution similar to Scotland where they have wide powers. Otherwise most of the laws made in the Assembly will go to the Supreme Court.

As you can tell, I am disappointed at the attitude now taken by the Wales Office in regards to the Assembly.