Response to the Richard Commission from Colin Nosworthy

"I think the devolution arrangements in Wales are fragile and I think very vulnerable if there were a change in political party governing in either capital…the ship of devolution has had a very easy launch … [but some] government lawyers would actually quite like a bit of … a test case, before the Privy Council… just to make sure that the lifeboats work…"¹

Schedule 8 of the Government of Wales Act² 1998’s lays down the ground rules for the adjudication of devolution issues. These are four-fold: one, whether the function is exercisable by the Assembly³; two, is the use of that function permitted⁴; three, its failure to comply with its duties⁵; and four, questions of compatibility of actions with the European Convention on Human Rights.⁶ Any court can determine "devolution issues"⁷ in the Anglo-Welsh judicial system⁸ and the highest court of appeal for such matters is the Judicial Committee of the Privy Council.⁹ Although the House of Lords has the right to refuse appeal to the Privy Council¹⁰, the Assembly or the Attorney General has the ability to make a direct reference to the Judicial Committee of the Privy Council on a devolution issue.¹¹

Imperative when assessing the judicial attitude to the constitutional position of Wales will be the Judicial Committee of the Privy Council.¹² The Council members are appointed for life, the Judicial Committee is but one of its branches and it is constituted of the most senior figures of the judiciary.¹³ The Committee remains the highest court of appeal for some former UK colonies.¹⁴ It considers approximately 70 cases per year most of which concern those countries. However, the devolution Acts of 1998 rejuvenated it to some extent¹⁵, making it the highest court of appeal for any devolution issue raised in judicial proceedings.¹⁶

Why was Judicial Committee given this devolution role? Rawlings contends that it was done to address ‘Scottish sensitivities’ and ‘to establish a common pattern of jurisdiction in devolution issues’.¹⁷ Rawlings fails to add to this reasoning the rather dry pragmatic consideration of not wishing to place too much of a burden on the Lords.¹⁸ It is partly because of the lack of rationale lying behind the provisions of Schedule 8 that it is the contention of this discourse that the judicial tradition of England and inadequate provisions of the Act leave the National Assembly in constitutional limbo. The Judicial Committee is there to introduce certainty into Westminster-Assembly relations; it fails in that task.

So is the constitutional position of Wales open to question? Craig and Walters¹⁹ seem to conclude that it is not:

‘In so far as courts are required to rule upon the validity of subordinate legislation enacted by the Assembly, they will do so on relatively familiar ground, since they are accustomed to reviewing secondary legislation.’²⁰

This study rejects that assertion for four reasons. Firstly, Henry VIII clauses²¹, included in the devolution settlement, are not familiar ground for the judiciary as they ‘blur the distinction between legislative and executive devolution’²², a point eloquently supported by Geoffrey Bowman, First Parliamentary Counsel, when referring to such clauses:

‘Suppose that the Assembly is given power to make legislation prescribing a curriculum for secondary education, and supposing there is no general power for the Assembly to legislate in relation to people with special needs, and then suppose that the Assembly wants to legislate in relation to secondary education generally, including the education of people with special needs. The question is, does it have that power or does it not? … you are never quite sure whether, and to what extent, the power has been exceeded, and therefore that the legislation can be struck down by the courts.’²³

In other words, he is saying that Craig and Walters are wrong in their belief that the judiciary are on terra firma when considering the validity of such sub-ordinate legislation; in fact there is much ambiguity.

Secondly, the greater use of such clauses²⁴ that could follow the Richards’ Commission review of National Assembly powers and the Lords’ Constitution Committee²⁵ reports, threatens to exacerbate that problem. The use of such ‘permissive clauses’ has been endorsed by the Assembly Review of Procedure, which adopted Richard Rawlings’ ‘Set of Devolution Principles’.²⁶ His devolution Principle 6 suggests that it should be permissible for the Assembly to be given powers to amend or repeal primary legislation (also known as Henry VIII powers) provided that the particular powers are justified for the purpose of the effective implementation of the relevant policy. The Presiding Officer, who supports such a view, explained the proposed development in this way:

‘I think that the next Assembly should start making proper legislation, not just sub-ordinate legislation, because we can do that under the Government of Wales Act. We need permissive clauses in legislation and the obvious ones are education and perhaps health.’²⁷

So, it is this study’s submission that in a surreptitious attempt to enhance Assembly competence, the crachach²⁸ will endanger the foundations of the institution they seek to fortify.

Thirdly, the continued legislative role of Westminster over devolved affairs²⁹ means that there has been a reneging on the promised social compact contained in the White Paper A Voice for Wales that ‘The Assembly will help create the body of law that governs Wales. The basic framework of the law is set in Acts of Parliament – primary legislation – within which Secretaries of State make rules and regulations in secondary legislation … The government proposes that in Wales the Assembly will assume these powers to make secondary legislation.’³⁰ This has not happened. The Local Government Act 2000, illustrates the problem,³¹ rule making powers, which according to the aforementioned proposal in the White Paper should be devolved to the Assembly, stay in UK Ministers’ hands.³² Westminster legislates with impunity over Welsh affairs. Thus, it would be perverse to describe the constitutional position as settled.

Fourthly, the judiciary’s attitude to home rule for the colonies³³ also goes against the grain of Craig and Walters. In particular, as will be demonstrated, nationhood can ‘plant a tree capable of growth’. The GOWA could become a statute that is interpreted as a constitution, in tune with the political spirit of the time, inconsistent with text of 1998.

So, in short the Welsh situation is not as simple as Craig and Walters make it appear. The GOWA and the Transfer of Functions Order³⁴ created, for many, an unhappy settlement, where Assembly capabilities are only to be found by referring to over 300 different Acts of Parliament. The answer to that limited and unclear settlement for some is to make greater use of permissive of Henry VIII clauses in Westminster legislation, allowing Wales to ‘go it alone’. This study suggests that such a trend would simply replace one uncertainty with another, a point outlined by Mr Geoffrey Bowman below.

By way of testing this hypothesis, I intend to deal in turn with the four factors Craig and Walters³⁵ contend will determine how the courts will resolve devolution questions: the ‘look’ of the statute; the manner in which power is divided; the degree to which power is divided; and the way the judiciary classify the subject matters of legislation. Within that structure this discourse will consider the judicial treatment of the following sub-parliaments: the Northern Ireland Parliament of 1920 –73³⁶; the other devolved institutions in the UK³⁷; and the Dominions and Commonwealth countries.³⁸

Craig and Walters³⁹ contend that the form or ‘look’ of the statute of the GOWA will determine whether it is interpreted as a constitution or an ‘ordinary’ UK statute. Even in the UK, ‘constitutional’ statutes have been interpreted contrary to Westminster’s initial intent; whilst ‘ordinary’ statutes are interpreted according to the traditional English or ‘global’ method.⁴⁰

The significance of constitutional, as opposed to traditional, interpretation is clear from the judicial approach to the British North America Act⁴¹ 1867, which by 1930 had been deemed a ‘constitution’ by Lord Sankey⁴² a departure from the initial opinion that it would be treated to the ‘same methods of construction’ as ordinary English statutes.⁴³

The theory is that the more the statute looks like a constitution the more likely it is to be given a wide and flexible interpretation. For example, in Edwards v. Attorney-General for Canada⁴⁴ feminists sought to challenge the Canadian Supreme Court’s conclusion that the constitution of Canada precluded women from becoming senators. But the Privy Council did not shrink from setting aside a unanimous judgement of the Supreme Court for Canada, stating that women were eligible to be summoned to and become members of the Senate of Canada. Lord Sankey noted in his judgement that:

‘The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada.’⁴⁵

Statutes read as a constitution, it is further contended, almost take on the form of fundamental law. Calvert argues forcibly that there exists a class of UK statute that has superior constitutional status to the ordinary law and cannot be repealed without special procedure.⁴⁶ A fact acknowledged Lord Denning MR in Blackburn v. Attorney-General:⁴⁷

‘… in legal theory, one Parliament cannot bind another, and … no Act is irreversible. But legal theory does not always march alongside political reality … Take the Acts which have granted independence to the Dominions … Can anyone imagine that Parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away.’ (my italics)

As Lord Denning’s acknowledged, s.4 Statute of Westminster merely codified the existing common law, which acknowledged the principle that Parliament should not legislate for a colony without its consent before they were ‘given’ independence.⁴⁸ As Sir Robert Megarry VC noted in Manuel v Attorney-General:⁴⁹

‘By 1926 it had become recognised as a clear constitutional convention that the United Kingdom Parliament would not legislate for a Dominion without the consent of that Dominion. That convention was given the force of law by the Statute of Westminster.’⁵⁰

In terms of UK domestic precedent, Calvert⁵¹ argues that Lord Cooper’s comments in MacCormick v Lord Advocate⁵² provide some support to his assertion that it is only an English interpretation of the UK constitution that assumes ‘absolute’ parliamentary sovereignty:⁵³

‘the Treaty [of union]… contain[s] some clauses which … emphatically exclude subsequent alteration by declarations that the provision shall be fundamental … I have never been able to understand how it is possible to reconcile with elementary canons of construction the adoption by the English constitutional theorists of the same attitude to these markedly different types of provisions.’⁵⁴

So could the GOWA be read as a constitution and thereby draw on colonial precedent that affords more protection to the devolved body on vires questions? One might argue that Schedule 8 itself should place greater emphasis on the constitutional precedent of the Judicial Committee than ordinary statutory interpretation methods. A point referred to by the then Under-secretary of State at the Welsh Office, Win Griffiths: ‘[As] The Judicial Committee acts now as the final constitutional court of appeal for various Commonwealth dependencies and colonies … we thought it appropriate to use its experience of handling cases that raise constitutional issues.’⁵⁵

However, Craig and Walters note three counts against the GOWA being interpreted as a constitution. Firstly, the primary aim of the GOWA was to keep Wales within the UK, whilst with the colonies the attempt was to start to give freedom away. The explicit aim of the GOWA was: "A directly-elected Assembly, firmly embedded in the United Kingdom".⁵⁶ However, the Government of Ireland Act⁵⁷ 1920 was also a ‘centripetal rather than a centrifugal’ devolution of powers – designed to secure Northern Ireland’s place in the UK. The Ireland Act 1949 illustrates the point: ‘Northern Ireland remains part … of the United Kingdom and … in no event will [it] … cease to part of … the United Kingdom without consent of the Parliament of Northern Ireland"⁵⁸ - a fact that did not prevent the Northern Ireland and English judiciary drawing on colonial precedent.

Secondly, the powers listed in s.91 and 92 of the BNA and s.51 of the Australian Constitution are general and constitution-like, whilst the GOWA is very different in nature. As Rawlings notes the devolved powers of the Assembly are detailed by dense text in the Transfer of Functions Order⁵⁹, which ‘represents a detailed trawl through some 300 Acts of Parliament, itemizing precisely which functions, some major, many minor’⁶⁰ – hardly a constitution, with vague and broad delegations of functions. This is perhaps the strongest argument for not affording the National Assembly’s Henry VIII powers the same degree of judicial protection as the colonies.

Thirdly, it is argued that an Act is more constitution-like the more difficult it is to amend. But the GOWA has already been amended; the Government Resources and Accounts Act 2000 amended it directly by inserting further provisions about the Assembly's finances. Contradistinguish that with the Scottish Sewel convention⁶¹, which restricts the UK parliament legislating over devolved affairs without the consent of the Scots. Clearly this does not apply in Wales, where Westminster continues to legislate in devolved areas bill after bill⁶², there is no constitutional protection for the secondary legislative issues over which it seemed the population of Wales had consented to be devolved.⁶³ In fact, Rawlings describes a situation in which each Westminster bill infringes on even the secondary legislative areas devolved to the Assembly, some affording the Assembly secondary legislative scope over the devolved areas⁶⁴, other statutes severely restricting it.⁶⁵ Clearly the notion that the GOWA is a part of the fundamental law of the UK constitution is incompatible with the situation in which Westminster continues to legislate unfettered in Welsh ‘devolved’ areas. Driving a nail in the coffin of the contention that Wales’ constitutional status is by any means certain.

Regardless of the fact that the GOWA could not be regarded as constitution-like in form, Craig and Walters argue that another factor⁶⁶ determines whether the ‘constitutional’ or ‘normal’ method is used: whether the Act uses the single or double enumeration model to divide power between the centre and the ‘province(s)’. The GOWA uses the single enumeration model, in other words it only lists the functions of the devolved body.⁶⁷ National Assembly powers are listed⁶⁸, whilst the Westminster’s reserved functions are left unlisted.⁶⁹ It is argued that a focus on the powers of the Assembly means that they are given a relatively broad reading, especially given the fact that supreme law-making authority is retained in Westminster. This supposition will be tested by reference to the case law to be examined under the heading ‘classifying subject matters’, below.

In terms of the degree to which power is devolved, Wales was conferred only limited powers under the settlement. The powers devolved were restricted to a very lengthy list contained in the transfer of functions order, plus the Henry VIII powers of ss.27-28 of GOWA enabling the Assembly to re-structure the quasi-autonomous non-governmental organisations, such as the WDA. There are two things to add as regards the attitude of the judiciary to these powers.

In terms of the ordinary secondary legislative powers, there is Commonwealth precedent to suggest that the typical English principles of judicial review would not apply to provincial legislatures. Principles outlined by, inter alia, the Wednesbury⁷⁰ and GCHQ cases.⁷¹ The first and obvious objection to an assertion that the National Assembly be open to the same principles of judicial scrutiny as a county council is that the Assembly is more akin to the UK Parliament, which, despite theoretically being open to a challenge of irrationality⁷², has never been successfully challenged on those grounds. Secondly, there is Commonwealth precedent to suggest that devolved legislatures’ byelaws could not be subject to those traditional grounds of judicial review. For example⁷³, in Singh’s case⁷⁴, a property owner in the Indian province of Oudh was subjected to legislation within the competence of the Provincial legislature under Schedule 7, Government of India Act 1935, which reduced his proprietary rights as conferred by the Crown. Before the Privy Council, he claimed this was ultra vires the Provincial legislature. Lord Wright clearly stated that:

‘No court can annul the enactment of a legislative body acting within the legitimate scope of its sovereign competence.’⁷⁵

Despite Craig and Walters' assertion that the English judiciary are well-versed in questions of judicial review of secondary legislation, they are not au fait with questions of judicial review of the secondary legislation of sovereign legislatures.

As regards the Henry VIII clauses, the subject of the main contention of this discourse, the position is even less clear. There have been a number of articles and judicial comment criticising the use of such clauses, as they risk the executive usurping the legislative role of the UK Parliament. As Lord Rippon has noted⁷⁶ for most of the 20^th century legislators have sought to severely constrain their use⁷⁷, of course we must bear in mind that the law lords are legislators themselves. However, jurisprudentially judges have little real power to nullify them in the Westminster context, as demonstrated by Thorburn v Sunderland CC.⁷⁸ So, it seems outwith the judiciary’s remit to question Henry VIII clauses on Wednesbury grounds – although it cannot be ruled out in theory. However, the use of Henry VIII clauses within legislation that incidentally affects upon matters that are outside the purpose of an Act, as per the example outlined by Mr Geoffrey Bowman above, are grey areas. How will the judiciary deal with such grey areas? Well, there is a strong line of Northern Ireland and colonial precedent, from which the judiciary can draw.

Any division of legislative authority will raise issues to resolve. The way in which the judiciary has dealt with these questions is to classify the subject matters of the legislation of sub-parliaments, in difficult situations where there are two or more matters with which a piece of legislation seeks to deal – one of which is a provincial matter, the other a federal one.

With this in mind, Hogg⁷⁹ asks: What is the matter of the law? Canadian jurisprudence developed the ‘pith and substance’ doctrine as the answer. For example, in Bank of Toronto v Lambe⁸⁰ the Privy Council had to consider whether a tax on banking was outwith the power of the province - taxing being a provincial responsibility and the regulation of banking a federal one. They held that although banking regulation was the federal parliament’s responsibility, because the ‘pith and substance’ of the legislation was taxation, a provincial matter, the legislation was valid.

Calvert⁸¹ suggests that Lord Atkin made a very important determination in Gallagher v Lynn⁸² to adopt, inter alia, the Canadian ‘pith and substance’ doctrine for Northern Ireland. It says that when determining how to classify the subject matter: ‘as long as the predominant aspect of the contested measure is within the legislative competence of the institution’, then it is valid. The other side of that test is the colourability doctrine: legislation is invalid if it purports to deal with a certain intra vires subject matter, but in fact or effect strays into an excluded matter. These are both dicta that could be used to determine the validity of legislation in Wales enacted under Henry VIII provisions.

The case of Gallagher v Lynn⁸³ concerned the Milk and Milk Products (Northern Ireland) Act 1934, which prohibited the sale of milk that had been produced without a licence from the Northern Ireland authorities. Gallagher was a dairy farmer in the county of Donegal in what is now the Republic of Ireland. Gallagher’s licence was refused by the Ministry of Agriculture on the ground that licences under the Act could be granted only to persons whose dairies where the milk was produced were situate in Northern Ireland. He subsequently sold milk in Londonderry without a licence, he was convicted. His counsel argued, inter alia, that s. 2(2) Milk Act had the effect of restricting trade in contravention of s.4(7) GIA.⁸⁴ The House of Lords disagreed. Lord Atkin held that:

"These questions affecting limitation on the legislative powers of subordinate parliaments or the distribution of powers between parliaments in a federal system are now familiar … in discussion of the powers of Canadian Parliaments … you are to look at the … "the pith and substance of the legislation." If … you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorized field."⁸⁵

This supports the contention above that doctrines of pith and substance and incidental effect, which come from Canadian jurisprudence⁸⁶, do apply to Northern Ireland and thus, could apply to Wales. Furthermore it supports the contention of Craig and Walters⁸⁷ that a formula that puts an emphasis on the powers of the devolved legislature (i.e. first in written order) will mean a narrower reading of the limitations and, by implication a broader reading of the devolved powers.⁸⁸ The danger for Wales is that the judiciary’s customary animosity toward Henry VIII or ‘permissive’ clauses will discourage them from applying that jurisprudence here.

Another case that supports those assertions in the Northern Ireland context is Belfast Corporation v OD Cars Ltd.⁸⁹ It concerned, amongst other things, the question of whether s. 6(4) of the Planning Act 1944, which restricted compensation for damages caused by planning restrictions, was ultra vires in the context of s. 5(1) GIA.⁹⁰ It was held by the Lords, reversing the NI Court of Appeal decision, that the restrictions imposed by these Planning Acts could not be described as a purported authorisation to "take any property without compensation" in contravention of section 5 (2) of the Act of 1920. Counsel for the local authority argued that:

‘To ‘take’ property means to acquire property. The design was to provide a constitution for both Southern Ireland and Northern Ireland and to continue existing laws. The method was to confer legislative powers on their legislatures in the widest terms, while indicating certain prohibited matters’⁹¹

Viscount Simonds agreed to adopt a narrow interpretation of the s.5(2) limitation, which supports Craig and Walters' view that a single enumeration method which focuses on powers conferred rather than limitations means narrow interpretation of the latter. The judge stated:

‘In the consideration of the constitutional validity of legislation … of Provincial Parliaments the expression "pith and substance" came to be commonly used in order to determine-whether an enactment was truly within the legislative power of the … Parliament.’⁹²

That case also points to a wider reluctance amongst the judiciary to declare an Act of that Parliament unconstitutional:

‘To my mind, it does more justice to its intent if a restriction which is in substance a taking, should one ever occur, is attacked ad hoc as not within the true meaning and scope of [the] section … than that the whole subsection should be thrown on the scrap-heap as constitutionally an outlaw.’⁹³

Such deference may not be shown to Welsh legislation under the ‘permissive’ clauses favoured by the Presiding Officer et al. given that they are an attempt both, to circumvent the restrictions of the GOWA/Transfer of Functions Order and to extend a traditionally frowned-upon legislative practice.

The Alberta Bank Taxation Reference⁹⁴ case shows how the result can be to the contrary, illustrating that the other related test is whether an Act is ‘colourable’ i.e. the law has an effect or purpose beyond the remit of that legislature.⁹⁵ The case also⁹⁶ concerned a tax on banking⁹⁷, but the effect of the measures was to discriminate in favour of one bank, the Bank of Canada. Thus, the legislation was valid to the extent that it claimed to be a tax measure, but in effect ultra vires as it regulated banking. It should be noted that commentators, such as Calvert, doubt the relevance of this approach to constitutions, such as Wales’ that singly enumerate the powers of the devolved legislature. This is based on Australian precedent, such as South Australia v The Commonwealth⁹⁸, in which the test was held to be as follows:

‘The true nature of a law is to be ascertained by examining its terms and, speaking generally, ascertaining what it does in relation to duties, rights or powers which it creates, abolishes or regulates … The consequential effects are irrelevant for this purpose.’⁹⁹

It is submitted here that colourability does not really add to the pith and substance test: it is simply saying that the true nature of the legislation is outwith the province’s powers – a reapplication of the pith and substance test. The real question, in a possible future Welsh context, it is submitted, is whether restricting the sub-parliament on the grounds of a consequential effect would overly restrict its competence in devolved matters.¹⁰⁰ Clearly sub-parliaments need breathing room; otherwise they will be suffocated.

Hogg identifies that behind these logical tests lies a further principle - the presumption of constitutionality. Whilst any sub-parliament must only act within the powers conferred, the provincial legislature’s Acts are to be presumed valid:

‘any question as to the validity of provincial legislation is to be approached on the assumption that it was validly enacted.’¹⁰¹

Hogg describes this as transferring ‘from the law of evidence the idea that a burden of demonstration lies upon those who would challenge the validity of a statute that has emerged from the democratic process.’¹⁰² A logic that would also suggest that Assembly sub-ordinate legislation should not be reviewed on the same principles as Council of Civil Service Unions v Minister for the Civil Service.¹⁰³

A final point to note is that very little case law emerged from Northern Ireland 1920-73 a pattern that may well be followed in Wales - a point made forcibly by Shellens.¹⁰⁴  If this situation persists then the certainty of relations between the political bodies in Cardiff and London will no doubt suffer. The judiciary could (and should) clarify the boundaries of authority and the relationship between the two. None of these questions will be resolved by silence, the practitioners of public law in Wales need to take every opportunity for the judiciary to comment on the constitutional position of Wales. It should be acknowledged that although Scotland has not developed clear case law either, there has been judicial comment¹⁰⁵, a step beyond the Welsh silence. Add to this fact that the judiciary are reluctant to clarify points of constitutional law, it seems that the status of Wales will remain uncertain for some time to come.

We have established that there is clear Commonwealth and Northern Ireland precedent for resolving the allocation of powers between primary-law making bodies and that the UK judiciary are familiar with the interpretation of sub-ordinate legislation. However, the National Assembly falls, and will increasingly fall, between these two established fields of jurisprudence. As noted at the outset, the Assembly already has ‘Henry VIII’ powers under ss.27-28 of the Act and the Richard’s Commission is considering proposals to extend the role of such clauses to some or all of the devolved areas.¹⁰⁶ The judiciary has traditionally narrowly interpreted these permissive legislative clauses in Westminster bills.¹⁰⁷ This leaves big question marks over the constitutional position of Wales, which do not seem likely to be settled in the courts in the near term.

So, how do we clarify the constitutional position for Wales? Here are a few ideas that could be considered.¹⁰⁸ Perhaps most pressing is the need for new rules of statutory interpretation. Firstly, there could be a Welsh version of s.101 of the Scotland Act, which compels the court to read Acts of that Parliament as intra vires¹⁰⁹, as far as possible.¹¹⁰ In addition, the Scotland Act codifies the incidental effect rule in Schedule 4, Part I, para. 3, a provision that could be replicated in Wales.

In terms of procedural issues the following changes could be considered. Firstly measures could be taken to repatriate the judicial review process with, as in Scotland, a guaranteed number of Welsh judges. Also when considering Welsh devolution issues the Judicial Committee and others could sit in Wales.¹¹¹ It is also argued that there is scope for greater use of extra-judicial conflict resolution.¹¹² There is also a need to challenge Welsh legal practitioners to strengthen the public law specialism in the country.¹¹³

There are also some proposals for changes at the UK Parliament. It is submitted that there could be a Welsh version of the Scottish Sewel Convention, which states that ‘the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature’.¹¹⁴ It would be also worth altering parliamentary drafting conventions to ensure that permissive or Henry VIII clauses in Westminster legislation include some form of reference to Schedule 2 of the GOWA. It is hoped that these and other changes can clarify the constitutional position of Wales.

Bibliography

Bradley, A.W., Constitutional and Administrative Law, 13th ed., Harlow: Longman, 2003

British North America Act 1867 (renamed the Constitution Act 1867)

Command Paper 3718, A Voice for Wales – Llais dros Gymru

Craig, P and Walters, M, The Courts, Devolution and Judicial Review [1999] PL 274

Calvert, H., Constitutional Law in Northern Ireland: a study in regional government, London: Stevens, 1968

De Smith, Judicial Control of Administrative Action, 3^rd ed., pp. 329-331

Dicey, A.V., Introduction to the Study of the Law of the Constitution, 10^th ed. Basingstoke: Macmillan Education, 1959 p.40

Government of Ireland Act 1920

Government of Wales Act 1998

Halsbury’s Laws vol.6 para.820

Hogg, P., Constitutional Law of Canada, 3^rd Ed., Carswell: Ontario

House of Lord’s Constitution Committee, Second Report: Devolution: Inter-Institutional Relations in the United Kingdom, 16 January 2003

http://www.parliament.the-stationery-office.co.uk/pa/cm200102/cmselect/cmwelaf/uc1242-ii/uc124202.htm (visited 20 Mar 2003)

http://www.publications.parliament.uk/pa/ld/ldconst.htm (visited 23 Jan 2003)

Ireland Act 1949

Judicial Committee (Devolution Issues) Rules Order 1999

Judicial Committee (Powers in Devolution Cases) Order 1999

Korah, V., Counter-Inflationary Legislation: Whither Parliamentary Sovereignty? (1976) 92 LQR 42

Rawlings, R., Quasi-Legislative Devolution: Powers and Principles [2001] Wales Law Journal – Lord Morris of Borth y Gest Seminars pp.13-39

Reid, S., & Ryder, N., Death of the Privy Council: Exaggeration or Stated Fact?, (2001) Commonwealth Judicial Journal, 14 (1), 32-37.

Rippon, Henry VIII clauses (1989) Stat. Law Rev. 205-206

Scotland Act 1998

Shellens, H., Introduction: The importance of Public Law Challenges in Wales, [2001] 1 Wales Law Journal 64

Statute of Westminster 1931

Wheare, K.C., The Constitutional Structure of the Commonwealth, OUP: London 1960

Whyte, J., How much discrimination was there under the unionist regime, 1921-68? Contemporary Irish Studies., http://cain.ulst.ac.uk/issues/discrimination/whyte.htm

Whyte, N., The Northern Ireland House of Commons 1921-1972., Northern Ireland Social and Political Archive - http://www.ark.ac.uk/elections/hnihoc.htm (19^th February 2003)

Cases Considered

Anderson v Scottish Ministers [2001] SLT 1331

Attorney General of Alberta v Attorney General of Canada [1939] AC 117

Bank of New South Wales v. The Commonwealth 76 CLR 1. 186

Bank of Toronto v Lambe (1887) 12 App. Cas. 575

Belfast Corporation v OD Cars Ltd [1960] AC 490

Blackburn v. Attorney-General [1971] 1 WLR 1037

Boddington v British Transport Police (1998) 2 WLR 639

Bribery Commission v Attorney-General [1971] 1 WLR 1037

Bribery Commissioner v Ranasinghe [1965] AC 172

British Coal Corp v King [1935] AC 500

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

County Council of Londonderry et al v M’Glade et al (1925) NI 47

Edwards v. Attorney-General for Canada [1930] AC 124

Gallagher v Lynn [1937] A.C. 863 (HL)

MacCormick v Lord Advocate [1953] S.C. 396

Manuel v Attorney-General [1983] 1 Ch 77

McNeil v. Nova Scotia (Board of Censors) [1978] 2 SCR 662

R v Big M Drug Mart [1985] 1 SCR 295

R (Hume et al.) v Londonderry Justices [1972] NILR 91

County Council of Londonderry et al v M’Glade et al (1925) NI 47

R v London Transport Executive ex parte Greater London Council (1983) 2 WLR 702

Shannon et al. v Lower Mainland Dairy Products Board et al. [1938] 4 D.L.R. 81

South Australia v The Commonwealth 65 CLR 373

Thorburn v Sunderland CC (2002) 152 NLJ 312

Ulster Transport Authority v James Brown & Sons Ltd [1953] NI 79

Footnotes

1 Prof. R. Hazell giving evidence to the Select Committee on the Constitution 10^th July 2002

2 Referred to hereafter as the GOWA

3 Government of Wales Act 1998 Sch. 8 para.1(1)(a)

4 ibid Sch. 8 para.1(1)(b)

5 ibid Sch. 8 para.1(1)(c)

6 ibid Sch. 8 para.1(1)(d) Also note that all of the Government of Wales and Scotland’s conduct must be compatible with the Human Rights Act, this led to a series of test cases on the implications of the HRA on law in the UK, see Brown v Stott [2001] 2 WLR 817

7 As defined by Government of Wales Act 1998 Sch. 8 para.1(1)

8 Government of Wales Act 1998 Sch. 8 paras.6,7,8 and 9

9 ibid Sch. 8 paras.10 and 11

10 ibid Sch. 8 para.29

11 ibid Sch. 8 paras.30 and 31

12 Hereafter referred to as the Judicial Committee. Schedule 8 sets out the specific scenarios in which cases are to be referred, perhaps most significantly the Attorney-General is given the leave to make direct references to the Judicial Committee of the Privy Council.

13 As defined by Sch.8 para.33 GOWA. The ordinary courts of England and Wales will also have the ability to interpret the Act.

14 For further discussion see - Reid, S., & Ryder, N., Death of the Privy Council: Exaggeration or Stated Fact?, (2001) Commonwealth Judicial Journal, 14 (1), 32-37.

15 Under powers officially conferred by Judicial Committee (Power over Devolution Cases) Order 1999

16 See especially Part V Sch.8 GOWA, both the National Assembly and the Attorney-General are empowered to make direct references to the Judicial Committee of the Privy Council, alternatively devolution issues can reach the committee through the appeals process.

17 Rawlings, R A New Model Wales [1998] 25 Jnl. Law and Society 461 at 495, reasoning based on Win Griffiths’ comments 305 H.C. Debs., col.927 (3 February 1998)

18 ‘The amendments would add to the work load of the Appellate Committee of the House of Lords.’ Win Griffiths’ comments 305 H.C. Debs., cols.927-928 (3 February 1998)

19 Craig, P. and Walters, M., The Courts, Devolution and Judicial Review [1999] PL 274

20 ibid. p.288

21 As adopted under ss.27-28 GOWA, s.7 Local Government Act 2000 and s.214(1) Education Act 2002

22 Rawlings, R A New Model Wales [1998] 25 Jnl. Law and Society 461

23 Evidence to the Welsh Affairs Select Committee’s review of the Legislative process as it affects Wales presented by Geoffrey Bowman, First Parliamentary Counsel, on 5 November 2002 http://www.parliament.the-stationery-office.co.uk/pa/cm200102/cmselect/cmwelaf/uc1242-ii/uc124202.htm (visited 20 Mar 2003)

24 Henry VIII clauses allow Westminster to delegate significant powers to amend, or even repeal primary and subordinate legislation made by ministers.

25 Second Report: Devolution: Inter-Institutional Relations in the United Kingdom,  See: http://www.publications.parliament.uk/pa/ld/ldconst.htm (visited 23 Jan 2003)

26 Rawlings, R., Quasi-Legislative Devolution: Powers and Principles [2001] Wales Law Journal – Lord Morris of Borth y Gest Seminars p.34

27 http://www.tribancoch.com/interview.html (visited 12th Jan 2003)

28 The Welsh political elite

29 In addition to the complex transfers of functions order, Westminster has adopted an inconsistent "bill by bill" approach to defining the powers of the Assembly. For further comment on this ad hoc approach to the devolution of powers in Westminster bills see Rawlings, R., Quasi-Legislative Devolution: Powers and Principles [2001] Wales Law Journal – Lord Morris of Borth y Gest Seminars pp.23-24

30 Cm. 3718 A Voice for Wales – Llais dros Gymru, para. 1.11

31 Cited by Rawlings, R., Quasi-Legislative Devolution: Powers and Principles [2001] Wales Law Journal – Lord Morris of Borth y Gest Seminars p.24

32 Clause 6 of the Local Government bill was criticised by the then Secretary for Local Government and Housing for leaving powers over education strategic plans, best value plans, unitary development plans and local transport plans, with the Secretary of State for Wales – see Official Record, 4 July 2000. Such infringement on the Scottish Parliament’s affairs is prevented by means of the Sewel Convention – see footnote 114 post.

33 Some argue that given the National Assembly’s powers are in the main to create sub-ordinate legislation then it would be wiser to examine those interpretative principles as compendiously grouped by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 under the headings of illegality, procedural impropriety and irrationality.

34 National Assembly for Wales (Transfer of Functions) Order 1999/672

35 Craig, P. and Walters, M., The Courts, Devolution and Judicial Review [1999] PL 274

36 First and foremost the Northern Ireland experience of 1920-73 is one of the few examples of a sub-parliament in the UK. Secondly, during that 1920-73 period the provisions for application of judicial review vis-à-vis that Parliament were similar to those included in the GOWA. Section 51 of the GIA provides for direct reference to the Judicial Committee, mirroring Schedule 8 paras.30 and 31 of the GOWA. In fact, when viewed in their entirety the two statutes bear a striking similarity, in terms of their provision for judicial review.

37 There will not be sufficient time to consider another relevant parallel: the Greater London Council 1913-1986.

38 Canada and its provinces were devolved powers under the British North America Act 1867. The comparison with the National Assembly is relevant for two main reasons. Firstly, the Canadian system of government was and is federal, so Canadian jurisprudence developed, much earlier than the UK case law dealing with centre-state relations. Second, that Canadian government was an early example of a devolved Parliament ‘sub-ordinate’ to the UK’s Imperial Parliament.

39 Craig, P. and Walters, M., The Courts, Devolution and Judicial Review [1999] PL 274

40 Simply speaking, the English approach concentrates on the grammatical interpretation of the words of the statute consistent with their ordinary usage. For a fuller discussion of the judicial approach to statutory interpretation see Bennion, F., What Interpretation is ‘possible’ under section 3(1) of the HRA 1998? [Spring 2000] PL pp.77-92

41 Hereinafter referred to as the BNA

42 In Edwards v. Attorney-General for Canada [1930] AC 124 at 136-137

43 Bank of Toronto v Lambe (1887) 12 App. Cas. 575 at 579

44 [1930] AC 124

45 Per Lord Sankey ibid. at 136

46 Calvert, H., Constitutional Law in Northern Ireland: a study in regional government, London: Stevens, 1968 ch. 1

47 [1971] 1 WLR 1037, 1040

48 This is a position supported by Lord Pearce in Bribery Commissioner v Ranasinghe [1965] AC 172, p.172 and p.198; there is also evidence to suggest that sovereignty surrendered to a territory does not require the express repeal of a statute, but cannot be repealed at all – see Bribery Commission v Attorney-General [1971] 1 WLR 1037, 1040

49 [1983] 1 Ch 77 at 96 - 97

50 ibid. per Sir Robert Megarry VC

51 Calvert, H., Constitutional Law in Northern Ireland: a study in regional government, London: Stevens ch. 1

52 [1953] S.C. 396

53 C.f. Viscount Sankey LC’s judgement British Coal Corp v King [1935] AC 500, at 520 that sovereignty can be returned once given away "It is doubtless true that the power of the Imperial parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired".

54 ibid. at 262

55 305 H.C. Debs., col.927 (3 February 1998)

56 Cm. 3718 A Voice for Wales – Llais dros Gymru, para. 1.27

57 Referred to hereafter as the GIA

58 s.1(2) Ireland Act 1949. It is also interesting to note the irony here that although Westminster continued to legislate over Northern Ireland devolved affairs – see R (Hume) v Londonderry Justices [1972] NI 91 at 114-115 – without formal consultation, in keeping with the strict doctrine of parliamentary sovereignty, the Westminster legislators also sought to bind future Parliaments to prevent them from annexing Northern Ireland from the UK. A case of seeking to have their cake and eating it.

59  National Assembly for Wales (Transfer of Functions) Order 1999/672

60 Rawlings, R., A New Model Wales [1998] 25 Jnl. Law and Society 461, 486

61 Described as the situation whereby ‘the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature’ H.C. Debates, col.791 (21 July 1998)

62 Rawlings, R., A New Model Wales [1998] 25 Jnl. Law and Society 461

63 Cm. 3718 A Voice for Wales – Llais dros Gymru

64 As defined by Schedule 2 GOWA

65 Contrast Children’s Commissioner for Wales Act with the Local Government Act 2000, cited by Rawlings, R., Quasi-Legislative Devolution: Powers and Principles [2001] Wales Law Journal – Lord Morris of Borth y Gest Seminars p. 24

66 They briefly state that judicial attitudes are formed in the context of historical, social and other factors, but these are not discussed.

67 As opposed to the double enumeration model, as used by the Constitution Act 1867 that dealt with Canada, which will list the legislative powers of both the centre and the province

68 See National Assembly for Wales (Transfer of Functions) Order 1999/672

69 This is the reverse of the Scotland Act’s method, which lists both general and specific legislative reserved powers, but leaves largely unenumerated the Scottish Parliament’s functions.

70 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223 – the reasonableness test of

71 Council Civil Service Unions v Minister for the Civil Service [1985] A.C. 374 Lord Diplock under the headings of illegality, procedural impropriety and irrationality.

72 See Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240

73 See also Hodge v The Queen (1883-84) L.R. 9 App. Cas. 117

74 Singh v United Provinces [1946] A.C. 327

75 ibid. at 335

76 Rippon, Henry VIII clauses (1989) Stat. Law Rev. 205-206

77 For further evidence see Korah, V., Counter-Inflationary Legislation: Whither Parliamentary Sovereignty? (1976) 92 LQR 42; see also De Smith, Judicial Control of Administrative Action (3^rd Edition) pp. 329-331

78 (2002) 152 NLJ 312

79 Hogg, P., Constitutional Law of Canada, 3^rd Ed., Carswell: Ontario

80 (1887) 12 App. Cas. 575

81 Calvert, H., Constitutional Law in Northern Ireland: a study in regional government, London: Stevens, 1968

82 [1937] A.C. 863 (HL); this case is considered below

83 [1937] A.C. 863 (HL)

84 This prohibited the NI Parliament to legislate ‘in respect of’ inter-state trade.

85 Gallagher v Lynn [1937] A.C. 863 (HL) Lord Atkin at 870

86 This precedent will be considered below.

87 Craig, P and Walters, M, The Courts, Devolution and Judicial Review [1999] PL pp.295-6

88 The ratio of this case was also upheld in the Judicial Committee, Shannon et al. v Lower Mainland Daily Products Board et al [1937] 4 DLR 81, where Lord Atkin affirmed his own dicta.

89 [1960] AC 490, HL

90 Which, inter alia, prohibited religious discrimination and ‘taking away property without compensation’.

91 [1960] AC 490 at 498

92 Judgement of Viscount Simonds, Belfast Corporation v OD Cars Ltd [1960] AC 490 at 520

93 Judgement of Lord Radcliffe, Belfast Corporation v OD Cars Ltd [1960] AC 490 at 525-6

94 Attorney General of Alberta v Attorney General of Canada [1939] AC 117

95 Note that whilst disguising legislation’s effect by proclaiming that it deals with another matter might not work, in R v Big M Drug Mart [1985] 1 SCR 295 the federal parliament would have been allowed to prevent commercial activities on a Sunday because it was under the auspices of preserving the sanctity of the Lord’s day, but not if it had been for secular purposes.

96 Similar to Bank of Toronto v Lambe (1887) 12 App. Cas. 575

97 The Taxation of Banks Bill

98 [1942] 65 CLR 373

99 ibid. at 424

100 The decisions in both the Alberta Bank Taxation Reference case and Bank of Toronto v Lambe would be consistent with that test.

101 McNeil v. Nova Scotia (Board of Censors) [1978] 2 SCR 662, para. 38

102 Hogg, P., Constitutional Law of Canada, 3^rd Ed., Carswell: Toronto p.390

103 [1985] AC 374

104 Shellens, H., Introduction: The importance of Public Law Challenges in Wales, [2001] 1 Wales Law Journal 64

105 Anderson v Scottish Ministers [2001] SLT 1331

106 As enumerated in Sch. 2 GOWA

107 For evidence see Korah, V., Counter-Inflationary Legislation: Whither Parliamentary Sovereignty? (1976) 92 LQR 42; see also De Smith, Judicial Control of Administrative Action (3^rd Edition) pp. 329-331

108 There is insufficient space in this discourse to consider their merits.

109 Also known as ‘reading down’, supra.

110 s.101(2) SA states that it is to be read ‘as narrowly as is required for it to be within competence, if such a reading is possible’

111 See Lord Thomas of Gresford’s failed amendment to the government of Wales bill - H.L Debates, col. 984 (9 Jun 1998); this is a problem that has not been resolved by the introduction of the Administrative Court of Wales.

112 Second Report: Devolution: Inter-Institutional Relations in the United Kingdom, House of Lord’s Constitution Committee, 16 January 2003 para. 33 especially.

113 A point made by Shellens, H., Introduction: The importance of Public Law Challenges in Wales, [2001] 1 Wales Law Journal 64

114 H.C. Debates, col.791 (21 July 1998)