The Welsh Byelaws bill and the UK Government: an update

The Welsh Government has released a good deal of correspondence regarding the progress of the Byelaws bill and the legal problem that has led to it being referred to the UK Supreme Court, which I discussed earlier HERE.  It is interesting that they have chosen to do this (and it is a choice), as section 28 of the Freedom of Information Act 2000 provides a broad exception to the Act if ‘disclosure under this Act would, or would be likely to, prejudice relations between any administration in the United Kingdom and any other such administration.’  Clearly the Welsh Government do not think it would, and it is encouraging that the Welsh Government has been willing to put this material in the public domain, although it has used the public interest exemptions in section 36 to exclude some internal notes and material.  (Just in case anyone was wondering, I was not involved in the FoI application.)  The hearing before the UK Supreme Court is due to begin next Tuesday, 9 October.

The letter explaining the disclosure can be found here, and the documents disclosed are at the bottom of that page.  They include the formal reference by the Attorney General to the Supreme Court, setting out the detailed legal grounds for the reference and drafted for him by Counsel, which is also here.

Not all the documents disclosed are that interesting – they include cover letters, correspondence about service issues for the UK Supreme Court proceedings, and similar material.  What is interesting is the correspondence between government officials, and later between ministers, about the issues involved.  The first of these is an email from the Welsh Government to the UK Department for Communities and Local Government of 21 October 2011 setting out what the bill does in some detail and seeking the Secretary of State’s ‘comments’ but emphatically not her consent.  It notes that

in practice, in the limited instances where a concurrent confirmation function exists in relation to byelaws, it is invariably the case that byelaws are submitted to the Welsh Ministers and we are not aware of any instances when the Secretary of State has been requested to confirm Welsh byelaws.

The email also sets out the legal argument that is used by the Welsh Government in the subsequent correspondence – that an Act of the Assembly has the power to remove or modify pre-commencement functions of ministers of the Crown where this is incidental to or consequential on other provisions of an Act made within the Assembly’s legislative powers (see paragraph 6 of Part 3 of Schedule 7).

This argument is rejected by the Wales Office in an email of 27 January 2012, and substantially rehearsed at ministerial level in letters of 8 April 2012 (Carl Sargeant to Cheryl Gillan) and 1 May 2012 (Cheryl Gillan to Carwyn Jones).  In that letter, Gillan indicates her need to consider whether to give consent to the bill, and notes that any consent would be conditional on an amendment being made to clause 9 of the bill to ensure that the abandonment of the need for byelaws to be confirmed by UK ministers would not be extended in future without her consent.  Subsequently, in a letter of 12 June, she confirmed that she would be willing to do so.

This version of events largely confirms the one I sketched out in my earlier post on the Byelaws bill.  Most importantly, it indicates that the Welsh Government did not seek Secretary of State’s consent for the bill, although it was aware of the UK Government’s view about the need for consent and was offered it subject to making minimal amendments to the bill.  In other words, it preferred to pursue a course of conduct that put the bill before the Supreme Court, rather than obtain consent and save the legislation.  Nothing here changes my view on the legal issue of statutory construction: this is an attempt to use a limited power fundamentally to reshape the legal framework of Welsh devolution, in a way that goes beyond the clear framework of the Act.  As such, I think it is highly unlikely to succeed before the UK Supreme Court.  The Counsel General clearly disagrees, and outlines his reasoning in this statement from the Welsh Government.

It’s important that these documents show that the Welsh Government was aware, from early on, of the possible legal problem with the bill.  Yet the Minister did not qualify his statement that he considered that the bill was within the Assembly’s legislative competence, on introduction or (so far as I can tell) subsequently, despite the correspondence between officials and ministers about this.  The failure to ensure that the National Assembly was aware of this issue strikes me as a major concern here.

UPDATE, 11 October: There’s a report of the first day of the hearing from Toby Mason of the BBC here, and discussions of it  by Mason here and Betsan Powys here.  There’s also a different view of the merits of the case by Manon George from Cardiff Law School on ClickonWales here.